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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
HALL v. UNITED STATES.
No. 13871.
United Slates Court of Appeals Eighth Circuit.
June 9, 1950.
Frank J. O’Leary, Kansas City, Mo., for appellant.
Richard H. Musser, Assistant United States Attorney, Kansas City, Mo. (Sam M. Wear, United States Attorney, Kansas City, Mo., was with him on the brief), for appellee.
Before SANBORN, JOHNSEN and RIDDICK, Circuit Judges.
SANBORN, Circuit Judge.
LeRoy Neeley and Milton Hall were charged, by an indictment, with having, on June 24, 1948, stolen a case of Camel cigarettes from the Missouri Pacific Railroad docks at Kansas City, Missouri, while the cigarettes were moving in interstate commerce as a portion of a shipment from R. J. Reynolds Tobacco Company, Kansas City, Missouri, to Rohlfmg & Company, Leavenworth, Kansas. The indictment was based on § 409, Title 18 U.S.C., now § 659, Title Both defendants were, on June 24, 1948, employees of the Missouri 18 U.S.C.A. Pacific Railroad Company, working on its docks in Kansas City, Missouri.
Neeley entered a plea of guilty. Hall stood trial and was convicted by a jury. The court had denied his motion for a directed verdict of acquittal. From the judgment and sentence entered upon the verdict, Hall has appealed. ,
The grounds upon which Hall seeks reversal are: (1) lack of evidence that the case of cigarettes allegedly stolen by him from the railroad docks was from the interstate shipment referred to in the indictment; (2) the failure of the court to direct the jury to disregard an improper remark of the prosecutor made during the cross-examination of one of Hall’s character witnesses ; and (3) the instruction of the court that Hall’s certificate of Honorable Discharge from the Army, which had been received in evidence without objection, had no probative force.
It is not a federal offense to steal a case of Camel cigarettes from the Missouri Pacific Railroad docks in Kansas City, Missouri, unless the theft is from a shipment moving in interstate commerce. It was therefore incumbent upon the Government to prove not only that Hall stole or participated in the stealing of a case of Camel cigarettes from the docks, but that the case stolen was from the interstate shipment specified in the indictment.
The evidence of the Government established that, at about four- or five o’clock in the afternoon of June 24, 1948, there was delivered at the railroad docks in Kansas City a shipment of 15 cases of Camel cigarettes consigned by R. J. Reynolds Tobacco Company to Rohlfing & Company, Leavenworth, Kansas; that the carrier received and accepted this shipment; that in transferring the shipment to a platform truck, the railroad checker found that one of the cases “was partly open at the tip”; that he directed that the entire shipment be taken to the Cooper Shop at the docks for repair of the one case; that the shipment came to the Cooper Shop.on a truck; that the split seam of the one defective case was mended with white tape, and it was put back on the truck; that the shipment was turned over to Jesse Childs, a “line-up man,” whose duty it was to place the truck in position to be hauled by a tractor man to the location on the docks for loading the shipment into the car destined to Leavenworth; that the car, when loaded, was sealed, apparently between 5 and 6 o’clock p. m.; that it arrived in Leavenworth the following morning with seals intact; and that the shipment of cigarettes was then found to be one case short. This evidence was concededly sufficient to support a finding that the missing case of cigarettes had not been loaded into the car at Kansas City.
Two apparently disinterested Government witnesses testified that, at about 5 :35 p. m. on June 24, 1948, they saw Neeley hand or throw a case of Camel cigarettes from the dock to Hall, who was on the ground, and who put the case in his automobile, parked nearby, and drove away.
Neeley testified for the Government. On direct examination, his testimony was, in part, as follows:
„ “Q. Now, referring your recollection to June 24, 1948 what did you and Milton Hall do together that day? A. Well, some cigarettes came open there and so, they were setting there when I went up there to put the stuff down on the floor there, so I seen them there.
“Q. Where were they setting? A. On the jack [platform truck],
“Q. About where from Gate 29? A. Oh, maybe about five feet.
“Q. From Gate 29? A. Yes. So he says to me, he says, ‘Something is coming up here. What can we do about it ? ’ I said ‘All right.’ He said, told me to hand him the carton, so I did.”
Neeley also testified that Hall took the case of cigarettes and put it in his car, and a day or two later gave Neeley ten dollars as his share of the proceeds. On cross-examination, Neeley gave the following testimony :
“Q. Now, tell us what he [Hall] said. A. Well, he said he had those cigarettes up there. He said there was some cigarettes up there, and he wanted me to give them to him, on this jack, and I gave them to him.
“Q. Where was he when he told you that? A. In the freight house.
* >}< * * * *
“Q. And what did you do? A. Well, I walked up to him — I looked for them and found them.
“Q. What did you find ? A. That case of cigarettes.
“Q. Is that all you found? A. That is all.
“Q. Just one case of cigarettes? A. Just one case of cigarettes.”
There is no indication in Neeley’s testimony that he knew from what shipment the case of cigarettes he handed to Hall was taken, or that the case was broken or taped up, or that it bore any number indicating the car for which it was intended or had any marks showing its destination. Apparently, all that Neeley knew was that he took a case of cigarettes from a truck and handed it to Hall, at Hall’s request. Whether the truck contained 15 cases or one case cannot be determined from the record. The other two Government witnesses who testified to the theft said that they saw Neeley hand Hall a case of Camel cigarettes. Neither of them said anything about a broken case or a taped-up case, or furnished any information as to the shipment from which the case was taken.
If Camel cigarettes were a rare commodity or if the evidence showed that the only cases of Camel cigarettes on the railroad docks at 5 :35 p. m. June 24, 1948, were the 15 cases destined to Leavenworth, an inference that the case stolen by Neeley and Hall was one of those 15 cases would, no doubt, be justified. We think, however, that the Government failed to prove that the cigarettes handed to Hall by Neeley were taken from the interstate shipment in suit. The situation in the instant cáse is analogous to that which resulted in a reversal in Cox v. United States, 8 Cir., 96 F.2d 41. While the evidence of the Government in the instant case is consistent with the theory that the theft was from the interstate shipment, it is not inconsistent with the theory that the theft was not from that shipment and was a State offense.
There is another reason why there must be a retrial of this case, although the point is not specified or argued in the appellant’s brief. The court charged the jury as follows: “Now, as to the law of the case. If you shall find and believe from the evidence in this case that the defendant on or about the 24th of June, this year, 1948, willfully and unlawfully, knowingly and feloniously took a case of cigarettes from the station, from the loading docks in Kansas City, Missouri, the loading docks of the Missouri Pacific Railroad Company, then it would be your duty to return a verdict of Guilty in this case. As I have indicated to you, if there should be any doubt in your mind, if you should believe reasonably he did not do it, you should return a verdict for the defendant.”
That instruction was obviously erroneous. Counsel for Hall took an exception to it at the trial, and assigned it as error in a motion for a new trial. The instruction was, as a practical matter, fatal to Hall’s defense, since the jury could hardly have found from the evidence that Hall had not participated in stealing a case of cigarettes from the railroad docks. This error in the court’s instructions is too plain and vital to be overlooked. See Ayers v. United States, 8 Cir., 58 F.2d 607, 609, and cases cited.
The other points relied upon by the appellant need not be discussed. The questions raised by them are unlikely to recur upon a retrial of this case. The opinion of the Supreme Court in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168, furnishes an adequate guide in dealing with the subject of character evidence.
The judgment appealed from is reversed and the case is remanded for a new trial.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
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".
John E. MORGAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 71-2927.
United States Court of Appeals, Ninth Circuit.
March 30, 1972.
John E. Morgan, in pro. per.
Bart M. Schouweiler, U. S. Atty., Las Vegas, Nev., Joseph L. Ward, Raymond B. Little, Asst. U. S. Attys., Reno, Nev., for respondent-appellee.
Before HAMLEY, BROWNING and WRIGHT, Circuit Judges.
PER CURIAM:
This is an appeal from a dismissal of a motion under 28 U.S.C. § 2255 to set aside a conviction in February 1971 on two counts of an information charging violation of an injunction entered in December 1968. We affirm.
Appellant was president of a Nevada corporation which encountered difficulties with the Securities and Exchange Commission over the sale of unregistered securities. In a civil action, the district court permanently enjoined appellant and other corporate officers from using the mails to sell corporate stock, unless it was exempted from the provisions of Section 5 of the Securities Act, 15 U.S.C. § 77e.
Nine months later appellant and others were indicted for conspiracy and sale of unregistered stock, and appellant was charged in two counts with offering to sell “certain [unregistered] securities, to wit, promissory notes . . . ” There followed extended delays and pretrial appearances. After a jury had been impaneled, appellant appeared with counsel and agreed with the government to plead guilty to a superseding information charging him in two counts with a violation of the 1968 injunction. The court accepted the plea after a careful inquiry into the voluntariness of the plea.
Appellant now claims that the promissory notes were exempted from registration and that the information failed to charge him with a crime. The district judge denied his § 2255 application without a hearing.
The information stated a crime under 18 U.S.C. § 402 and Morgan’s plea was a binding admission of all facts alleged therein. See e. g., North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Davis v. United States, 347 F.2d 374, 375 (9th Cir. 1965); Thomas v. United States, 290 F.2d 696, 697 (9th Cir. 1961).
The order denying the motion to set aside the convictions is affirmed.
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:
|
sc_certreason
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
CALIFORNIA et al. v. ARC AMERICA CORP. et al.
No. 87-1862.
Argued February 27, 1989
Decided April 18, 1989
White, J., delivered the opinion of the Court, in which all other Members joined, except Stevens and O’Connor, JJ., who took no part in the consideration or decision of the case.
Thomas Greene, Supervising Deputy Attorney General of California, argued the cause for appellants. With him on the briefs were John K. Van de Kamp, Attorney General, Andrea Sheridan Ordin, Chief Assistant Attorney General, Sanford N. Grushin, Assistant Attorney General, Owen Lee Kwong, and H. Chester Horne, Jr., Deputy Attorney General, Don Siegelman, Attorney General of Alabama, and James B. Prude, Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, Hubert H. Humphrey III, Attorney General of Minnesota, Stephen P. Kilgriff, Deputy Attorney General, and Kathleen M. Mahoney, Special Assistant Attorney General.
Roy T. Englert, Jr., argued the cause for the United States as amicus curiae urging reversal. With him on the briefs were Solicitor General Fried, Assistant Attorney General Rule, Deputy Solicitor General Merrill, Deputy Assistant Attorney General Starling, Catherine G. O’Sullivan, and Marion L. Jetton.
Theodore B. Olson argued the cause for appellees. With him on the brief for appellee ARC America Corp. were Phillip H. Rudolph, John J. Hanson, and John J. Waller, Jr. David J. Leonard and David H. Nix filed a brief for appellees Class Members Allied Concrete, Inc., et al.
Briefs of amici curiae urging reversal were filed for Thirty-five States et al. by J. Joseph Curran, Jr., Attorney General of Maryland, Michael F. Brockmeyer, and Ellen S. Cooper, Alan M. Barr, and Craig J. Hornig, Assistant Attorneys General, Grace Berg Schaible, Attorney General of Alaska, and Richard D. Monkman, John Steven Clark, Attorney General of Arkansas, Duane Woodard, Attorney General of Colorado, and Thomas P. McMahon, First Assistant Attorney General, Joseph I. Lieberman, Attorney General of Connecticut, and Robert M. Langer and Steven M. Rutstein, Assistant Attorneys General, Charles M. Oberly III, Attorney General of Delaware, and David G. Culley, Deputy Attorney General, Robert A. Buttenvorth, Attorney General of Florida, Wairen Price III, Attorney General of Hawaii, and Robert A. Marks, Rod Kimura, and Ann Catherine Blank, Deputy Attorneys General, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, and Frank A. Baldivin, Deputy Attorney General, Thomas J. Miller, Attorney General of Iowa, and John R. Perkins, Deputy Attorney General, Robert T. Stephan, Attorney General of Kansas, and David M. Cooper, Assistant Attorney General, William J. Guste, Jr., Attorney General of Louisiana, James E. Tierney, Attorney General of Maine, and Stephen L. Wessler, Deputy Attorney General, James M. Shannon, Attorney General of Massachusetts, and George Weber, Assistant Attorney General, Frank J. Kelley, Attorney General of Michigan, Michael C. Moore, Attorney General of Mississippi, and Robert E. Sanders, Special Assistant Attorney General, William L. Webster, Attorney General of Missouri, and Tom A. Glassberg, Assistant Attorney General, Mike Greely, Attorney General of Montana, and Joe Roberts, Assistant Attorney General, Robert M. Spire, Attorney General of Nebraska, and Dale A. Comer, Assistant Attorney General, Stephen E. Merrill, Attorney General of New Hampshire, and Terry L. Robertson, Senior Assistant Attorney General, W. Cary Edwards, Attorney General of New Jersey, and Laurel A. Price, Deputy Attorney General, Robert Abrams, Attorney General of New York, Anthony J. Celebrezze, Jr., Attorney General of Ohio, and Doreen C. Johnson, Assistant Attorney General, Robert H. Henry, Attorney General of Oklahoma, and Jane Wheeler, Assistant Attorney General, James E. O’Neil, Attorney General of Rhode Island, and Robyn Y. Davis, Assistant Attorney General, Roger A. Tellinghuisen, Attorney General of South Dakota, W. J. Michael Cody, Attorney General of Tennessee, and Perry A. Craft, Deputy Attorney General, Jim Mattox, Attorney General of Texas, Mary F. Keller, Executive Assistant Attorney General, and Aliene D. Evans, Assistant Attorney General, David L. Wilkinson, Attorney General of Utah, and Richard M. Hagstrom, Assistant Attorney General, Mary Sue Terry, Attorney General of Virginia, and Allen L. Jackson, Assistant Attorney General, Kenneth O. Eikenberry, Attorney General of Washington, and Carol A. Smith, Assistant Attorney General, Charles G. Brown, Attorney General of West Virginia, C. William Ullrich, First Deputy Attorney General, and Dan Huck, Deputy Attorney General, Donald J. Han-away, Attorney General of Wisconsin, and Kevin J. O’Connor, Assistant Attorney General, and Joseph B. Meyer, Attorney General of Wyoming; for the Consumers Union of U. S., Inc., by Alan Mark Silbergeld; and for the National Conference of State Legislatures et al. by Benna Ruth Solomon, David J. Burman, and Thomas L. Boeder.
Briefs of amici curiae urging affirmance were filed for the Business Roundtable by Thomas B. Leary and Janet L. McDavid; for the Chamber of Commerce of the United States by Bert W. Rein, James M. Johnstone, and Stephen A. Bokat; and for the National Association of Manufacturers by Otis Pratt Pearsall, Philip H. Curtis, Ronald C. Redcay, Jan S. Amundson, and Quentin Riegel.
Robert K. Corbin, Attorney General, and Anthony B. Ching, Solicitor General, filed a brief for the State of Arizona as amicus ciiriae.
Justice White
delivered the opinion of the Court.
In Illinois Brick Co. v. Illinois, 431 U. S. 720 (1977), the State of Illinois brought suit on its own behalf and on behalf of a number of local governmental entities seeking treble damages under §4 of the Clayton Act, 38 Stat. 731, as amended, 15 U. S. C. § 15(a), for an alleged conspiracy to fix the price of concrete block in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1. The State and the local governments were all indirect purchasers of concrete block — that is, they did not purchase concrete block directly from the price-fixing defendants but rather purchased products or contracted for construction into which the concrete block was incorporated by a prior purchaser. The Court held that, with limited exceptions, only overcharged direct purchasers, and not subsequent indirect purchasers, were persons “injured in [their] business or property” within the meaning of § 4, and that therefore the State of Illinois was not entitled to recover under federal law for the portion of the overcharge passed on to it.
Appellants in the present case, the States of Alabama, Arizona, California, and Minnesota, brought suit in the appropriate federal courts on their own behalf and on behalf of classes of all governmental entities within each State, excluding the Federal Government, seeking treble damages under §4 of the Clayton Act for an alleged nationwide conspiracy to fix prices of cement in violation of § 1 of the Sherman Act. Appellants are, at least in part, indirect purchasers of cement, and so under Illinois Brick, like the State of Illinois in that case, would not be entitled to recover on their indirect purchaser claims under § 4 unless those claims fell within one of the exceptions. In their complaints, however, appellants also alleged violations of their respective state antitrust laws under which, as a matter of state law, indirect purchasers arguably are allowed to recover for all overcharges passed on to them by direct purchasers. The claims under these state indirect purchaser statutes are the focus of this case.
Numerous similar actions were filed by other plaintiffs in various District Courts, and the actions were transferred to the United States District Court for the District of Arizona for coordinated pretrial proceedings. In re Cement and Concrete Antitrust Litigation, 437 F. Supp. 750 (JPML 1977). The District Court certified the actions as class actions and established a number of plaintiff classes. Between July 1979 and October 1981, several major defendants settled with the various classes, resulting in a settlement fund in excess of $32 million. The settlements left distribution of the fund for later resolution, subject to approval of the District Court.
Appellants sought payment out of the settlement fund for their state indirect purchaser claims. Appellees, class members who are direct purchasers, objected. When the District Court approved a plan for distributing the settlement fund, it refused to allow the claims against the fund pursuant to state indirect purchaser statutes. According to the District Court, “[s]uch statutes are clear attempts to frustrate the purposes and objectives of Congress, as interpreted by the Supreme Court in Illinois Brick, and, accordingly, are preempted by federal law.” App. to Juris. Statement A-31 (emphasis omitted).
The Ninth Circuit affirmed. In re Cement and Concrete Antitrust Litigation, 817 F. 2d 1435 (1987). The Court of Appeals identified “three purposes or objectives of federal antitrust law in this context,” as defined by Illinois Brick and Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481 (1968): avoiding unnecessarily complicated litigation; providing direct purchasers with incentives to bring private antitrust actions; and avoiding multiple liability of defendants. 817 F. 2d, at 1445. If state laws permitting indirect purchasers to recover were construed to restrict direct purchasers to suing only for the amount of any overcharge they have absorbed, the Court of Appeals was of the view that state law conflicted directly with federal law as construed in Illinois Brick. Alternatively, if state law permitted indirect purchasers to bring claims for damages in addition to the claims brought by direct purchasers, it would “impermissibly interfere with the three policy goals outlined in Hanover Shoe and Illinois Brick.” 817 F. 2d, at 1445. The Court of Appeals therefore held that state indirect purchaser claims that did not satisfy any exception to Illinois Brick were pre-empted.
Appellants appealed to this Court, invoking our jurisdiction under 28 U. S. C. § 1254(2). We noted probable jurisdiction, 488 U. S. 814 (1988), and we now reverse.
We should first make it clear exactly what the issue is before us. These cases alleged violations of both the Sherman Act and state antitrust Acts. The settlements, as we understand it, covered both the federal and the state-law claims; the settlement fund was intended to be distributed in complete satisfaction of those claims. Under federal law, no indirect purchaser is entitled to sue for damages for a Sherman Act violation, and there is no claim here that state law could provide a remedy for the federal violation that federal law forbids. Had these cases gone to trial and a Sherman Act violation been proved, only direct purchasers would have been entitled to damages for that violation, and there is no suggestion by the parties that the same rule should not apply to distributing that part of the fund that was meant to settle the Sherman Act claims. The issue before us is whether this rule limiting recoveries under the Sherman Act also prevents indirect purchasers from recovering damages flowing from violations of state law, despite express state statutory provisions giving such purchasers a damages cause of action.
The path to be followed in pre-emption cases is laid out by our cases. It is accepted that Congress has the authority, in exercising its Article I powers, to pre-empt state law. In the absence of an express statement by Congress that state law is pre-empted, there are two other bases for finding pre-emption. First, when Congress intends that federal law occupy a given field, state law in that field is pre-empted. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U. S. 190, 212-213 (1983). Second, even if Congress has not occupied the field, state law is nevertheless pre-empted to the extent it actually conflicts with federal law, that is, when compliance with both state and federal law is impossible, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142-143 (1963), or when the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U. S. 52, 67 (1941). See, e. g., Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 248 (1984).
In this case, in addition, appellees must overcome the presumption against finding pre-emption of state law in areas traditionally regulated by the States. See Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 716 (1985). When Congress legislates in a field traditionally occupied by the States, “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). Given the long history of state common-law and statutory remedies against monopolies and unfair business practices it is plain that this is an area traditionally regulated by the States. Cf. Florida Lime & Avocado Growers, supra, at 146 (regulation to “prevent the deception of consumers”).
In light of these principles, the Court of Appeals erred in holding that the state indirect purchaser statutes are preempted. There is no claim that the federal antitrust laws expressly pre-empt state laws permitting indirect purchaser recovery. Moreover, appellees concede that Congress has not pre-empted the field of antitrust law. Brief for Appellee ARC America Corp. 10, n. 5; Brief for Appellees Allied Concrete, Inc., et al. 4. Congress intended the federal antitrust laws to supplement, not displace, state antitrust remedies. 21 Cong. Rec. 2457 (1890) (remarks of Sen.. Sherman); see Cantor v. Detroit Edison Co., 428 U. S. 579, 632-635 (1976) (Stewart, J., dissenting). And on several prior occasions, the Court has recognized that the federal antitrust laws do not pre-empt state law. See Watson v. Buck, 313 U. S. 387, 403 (1941); Puerto Rico v. Shell Co., 302 U. S. 253, 259-260 (1937); cf. Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 133-134 (1978).
Appellees’ only contention is that state laws permitting indirect purchaser recoveries pose an obstacle to the accomplishment of the purposes and objectives of Congress. State laws to this effect are consistent with the broad purposes of the federal antitrust laws: deterring anticompetitive conduct and ensuring the compensation of victims of that conduct. Illinois Brick, 431 U. S., at 746; Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 485-486 (1977). The Court of Appeals concluded, however, that such laws are inconsistent with and stand as an obstacle to effectuating the congressional purposes and policies identified in Hanover Shoe and Illinois Brick In this respect, the Court of Appeals has misunderstood both Hanover Shoe and Illinois Brick.
Neither of those cases addressed the pre-emptive force of the federal antitrust laws. Neither case contains any discussion of state law or of the relevant standards for pre-emption of state law. As we made clear in Illinois Brick, the issue before the Court in both that case and in Hanover Shoe was strictly a question of statutory interpretation — what was the proper construction of § 4 of the Clayton Act. See, e. g., 431 U. S., at 736.
It is one thing to consider the congressional policies identified in Illinois Brick and Hanover Shoe in defining what sort of recovery federal antitrust law authorizes; it is something altogether different, and in our view inappropriate, to consider them as defining what federal law allows States to do under their own antitrust law. As construed in Illinois Brick, § 4 of the Clayton Act authorizes only direct purchasers to recover monopoly overcharges under federal law. We construed §4 as not authorizing indirect purchasers to recover under federal law because that would be contrary to the purposes of Congress. But nothing in Illinois Brick suggests that it would be contrary to congressional purposes for States to allow indirect purchasers to recover under their own antitrust laws.
The Court of Appeals also erred in concluding that state indirect purchaser statutes interfere with accomplishing the purposes of the federal law that were identified in Illinois Brick. First, the Court of Appeals concluded that state indirect purchaser statutes interfere with the congressional purpose of avoiding unnecessarily complicated proceedings on federal antitrust claims. But these state statutes cannot and do not purport to affect remedies available under federal law. Furthermore, state indirect purchaser actions will not necessarily be brought in federal court. 817 F. 2d, at 1445. Unlike the federal indirect purchaser claims asserted in Illinois Brick, which would have been exclusively within the jurisdiction of the federal courts, 15 U. S. C. §§ 15(a), 26, claims under state indirect purchaser statutes could be brought in state courts, separately from federal actions brought by direct purchasers. Moreover, federal courts have the discretion to decline to exercise pendent jurisdiction over state indirect purchaser claims, even if those claims are brought in the first instance in federal court. See Mine Workers v. Gibbs, 383 U. S. 715, 725-726 (1966). Since many state indirect purchaser actions would be heard in state courts, at least when the federal courts determined that hearing those claims would be overly burdensome, any complication of federal direct purchaser actions in federal court would be minimal.
Second, the Court of Appeals reasoned that allowing state indirect purchaser claims could reduce the incentives of direct purchasers to bring antitrust actions by reducing their potential recoveries. The presence of indirect purchaser claims would reduce settlement offers to direct purchasers, the Court of Appeals believed, and if the total liability were to exhaust a defendant’s assets, the direct purchasers would have to share the defendant’s estate in bankruptcy with indirect purchasers. But the Court in Illinois Brick was not concerned with the risk that a plaintiff might not be able to recover its entire damages award or might be offered less to settle. Indeed, taken to its extreme, the Court of Appeals’ logic would lead to the pre-emption of any state-law claims against antitrust defendants, even if wholly unrelated, because the presence of other litigation could threaten the defendants with bankruptcy and reduce their willingness to settle. Illinois Brick was concerned that requiring direct and indirect purchasers to apportion the recovery under a single statute — § 4 of the Clayton Act — would result in no one plaintiff having a sufficient incentive to sue under that statute. State indirect purchaser statutes pose no similar risk to the enforcement of the federal law.
Appellees argue that because the defendants in these antitrust actions have settled and there is a limited settlement fund, the indirect purchasers’ claims are pre-empted because those claims will likely reduce the amount that can be paid from the fund to direct purchasers. But as we said earlier, the settlement covered both federal and state-law claims, and whatever amount is allocable to federal claims will be distributed only to direct purchasers. Indirect purchasers will participate only in distributing the funds available to claimants under state law. Even if the settlement fund is not to be divided between state and federal-law claimants, the settlement necessarily was intended to dispose of all claimants, whether claiming under federal or state law and whether direct or indirect purchasers. That direct purchasers may have to share with indirect purchasers is a function of the fact and form of settlement rather than the impermissible operation of state indirect purchaser statutes.
Third, the Court of Appeals concluded that state indirect purchaser claims might subject antitrust defendants to multiple liability, in contravention of the “express federal policy” condemning multiple liability. 817 F. 2d, at 1446 (citing Illinois Brick; Associated General Contractors of California, Inc. v. Carpenters, 459 U. S. 519, 544 (1983); and Blue Shield of Virginia v. McCready, 457 U. S. 465, 474-475 (1982)). But Illinois Brick, as well as Associated General Contractors and Blue Shield, all were cases construing § 4 of the Clayton Act; in none of those cases did the Court identify a federal policy against States imposing liability in addition to that imposed by federal law. Ordinarily, state causes of action are not pre-empted solely because they impose liability over and above that authorized by federal law, see Silkwood v. Kerr-McGee Corp., 464 U. S., at 257-258; California v. Zook, 336 U. S. 725, 736 (1949), and no clear purpose of Congress indicates that we should decide otherwise in this case.
When viewed properly, Illinois Brick was a decision construing the federal antitrust laws, not a decision defining the interrelationship between the federal and state antitrust laws. The congressional purposes on which Illinois Brick was based provide no support for a finding that state indirect purchaser statutes are pre-empted by federal law. The judgment of the Court of Appeals is therefore reversed.
So ordered.
Justice Stevens and Justice O’Connor took no part in the consideration or decision of this case.
Section 4 provides as follows:
“[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” 15 U. S. C. § 15(a).
The Court noted two possible exceptions: when the direct purchaser and the indirect purchaser have entered into pre-existing cost-plus contracts, Illinois Brick Co. v. Illinois, 431 U. S., at 732, n. 12, and when the direct purchaser is owned or controlled by the indirect purchaser, id., at 736, n. 16.
The statutes of Alabama, California, and Minnesota expressly allow indirect purchasers to sue. See Ala. Code § 6-5-60(a) (1975) (allowing recovery by any person “injured or damaged . . . , direct or indirect”); Cal. Bus. & Prof. Code Ann. § 16750(a) (West Supp. 1989) (allowing recovery “regardless of whether such injured person dealt directly or indirectly with the defendant”); Minn. Stat. §325D.57 (1988) (allowing recovery by any person “injured directly or indirectly”). A number of other jurisdictions have similar statutes. Colo. Rev. Stat. §6-4-106 (Supp. 1988); D. C. Code § 28-4509(a) (1981); Haw. Rev. Stat. §480-14(c) (1985); 111. Rev. Stat., ch. 38, ¶60-7(2) (1988); Kan. Stat. Ann. §50-801(b) (Supp. 1988); Md. Com. Law Code Ann. § 11-209 (1983); Mich. Comp. Laws Ann. § 445.778 (West Supp. 1988); Miss. Code Ann. § 75-21-9 (1972); N. M. Stat. Ann. § 57-l-3(A) (1987); R. I. Gen. Laws § 6-36-12(g) (1985); S. D. Codified Laws §37-1-33 (1986); Wis. Stat. § 133.18 (1987-1988).
The Arizona statute, Ariz. Rev. Stat. Ann. § 44-1408(A) (1987), generally follows the language of the Clayton Act, but it might be interpreted as a matter of state law as authorizing indirect purchasers to recover. This is appellants’ position. See Brief for Appellants 19, n. 6; Juris. Statement 9. Appellees dispute this interpretation, Brief for Appellee ARC America Corp. 21, n. 14, and the District Court and the Court of Appeals did not pass on this question given their holdings that even if the statute was so interpreted it was pre-empted by federal law. We express no opinion on this question of Arizona law.
At the time of the enactment of the Sherman Act, 21 States had already adopted their own antitrust laws. Mosk, State Antitrust Enforcement and Coordination with Federal Enforcement, 21 A. B. A. Antitrust Section 358, 363 (1962). Moreover, the Sherman Act itself, in the words of Senator Sherman, “does not announce a new principle of law, but applies old and well recognized principles of the common law to the complicated jurisdiction of our State and Federal Government.” 21 Cong. Rec. 2456 (1890).
Cf. National Cooperative Research Act of 1984, 15 U. S. C. § 4303(c) (1982 ed., Supp. V); Export Trading Company Act of 1982, 15 U. S. C. §§4016, 4002(a)(7).
In one respect, the Court of Appeals was overly narrow in its description of the congressional purposes identified in Illinois Brick. In Illinois Brick, the Court was concerned not merely that direct purchasers have sufficient incentive to bring suit under the antitrust laws, as the Court of Appeals asserted, but rather that at least some party have sufficient incentive to bring suit. Indeed, we implicitly recognized as much in noting that indirect purchasers might be allowed to bring suit in cases in which it would be easy to prove the extent to which the overcharge was passed on to them. See 431 U. S., at 732, n. 12.
Contrary to the Court of Appeals’ suggestion, 817 F. 2d, at 1445, there is no contention here that the state indirect purchaser statutes themselves seek to limit the recovery direct purchasers can obtain under federal law.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_appel1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
AMERICAN ELASTICS, Inc., v. UNITED STATES.
No. 83, Docket 21799.
United States Court of Appeals Second Circuit.
Argued Dec. 7, 1950.
Decided Feb. 20, 1951.
Gordon, Brady, Caff rey & Keller, New York City, for appellant; Leo Brady, Leroy C. Curtis, New York City, of counsel.
Irving H. Saypol, U. S. Atty., New York City, for appellee; Harold J. Raby, Asst. U. S. Atty., New York City, of counsel.
Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges.
CHASE, Circuit Judge.
The plaintiff, a New York corporation doing business in New York City, sued the United States to recover the price it had paid for some war surplus webbing material purchased from the defendant under a written contract, dated December 5, 1944, which will be called the Chicago contract. It sought to have this contract rescinded because of a mutual mistake of the parties in believing that the material was as represented when in fact it was not, or for breach of warranty in the sale of goods by sample and by description. The defendant answered by denying that the material was not as represented, by denying any mutual mistake as to its condition or breach of warranty, and by filing a counterclaim in which it sought to recover the unpaid purchase price of additional elastic webbing which it had sold to the plaintiff under another written contract, dated May 7, 1945, which, will be called the Troy contract. The plaintiff replied to this counterclaim by denying that any of the purchase price was due and further by alleging that the material which it had purchased under the Troy contract was not as represented. It sought to recover what it had already paid for material delivered under that contract.
The government asserted that all the material it sold under both contracts was púrchased by the plaintiff upon an “as is” basis, and the court, sitting without a jury, so found, although it also found that the material delivered under the Troy contract was so mixed with foreign matter that the plaintiff justifiably rejected the last shipment of it, for which the government sought recovery. Accordingly, the judgment dismissed the original complaint and both the plaintiff’s counterclaim and the defendant’s counterclaim. Both parties appealed but the appeal of the defendant has been withdrawn.
The case was tried upon a stipulation of facts as to the Chicago contract and upon the deposition of the president of the plaintiff as to the Troy contract.
The Chicago Contract.
This material was at the plant of the Dryden Rubber Company, at Keokuk, Iowa, and was described in the contract as 15,000 pounds of “% used elastic head harness from gas mask in three crossing strips, sewed together. Has iron clinch tip on each of six ends.” Its condition was designated by the numeral “6,” the meaning of which was unknown to the plaintiff. The contract was on Form No. 921 R. A. of the Treasury Department, Procurement Division, and bore the notation “Sheet No. 1 of 1 Sheets” at the top. It was signed in behalf of both the buyer and the seller at the bottom of that page. On the back there was printed matter. The last paragraph consisted of directions to the custodian of the goods sold to deliver them to the buyer upon the buyer’s signing in the blank provided beneath the words “Delivery made and property accepted.” There was also a blank for the signature of the contracting officer authorizing the delivery. There were, however, no signatures on the back. The remainder of the printed matter consisted of four numbered “conditions,”’ only the first of which is of concern now. That read, “All property is sold ‘as is’ and ‘where is’ without express or implied warranty of any kind.” It was this condition which the court held bound the plaintiff and precluded its recovery, and decision as to that contract turns upon the correctness of this holding.
In this connection a little of the background will be helpful. The Chicago contract was not the first dealing the plaintiff had had with the government in respect to such war surplus elastic webbing material, or indeed with such material at the Dryden Rubber Company’s factory. On October 12, 1944 the plaintiff offered to purchase, pursuant to a written contract executed by it and the contracting officer of the Chemical Warfare Service, United States Army, for delivery by the government to it, f. o. b. Keokuk, Iowa, the following :
“Scrap Elastic Head Harness Webbing, three crossing straps with clinch tips but without pyroxylin coated cloth centerpiece: To be baled or packed in corrugated boxes w/o sweepings. Total accumulation for 90 days plus 15,000 lbs. now available. * sfc
This contract expressly provided, in the body thereof, that the buyer should accept the property “as is”' at time of delivery and without any guaranty or warranty of any kind, and the purchase price was 78 cents a pound. The contract was disapproved by order of the Chief of Chemical Warfare Service in Washington. On October 20, 1944, the plaintiff was so notified, the checks it had given were returned to it, and it was further advised that the “elastic webbing is being declared to the Treasury Department, Procurement Division, to be sold by negotiation.” Thus this contract never became effective.
On October 30, 1944, the plaintiff wrote the Surplus Goods Division of the Treasury at Chicago, which will be called the Chicago Office, that his “offer to the Boston and Chicago Chemical Warfare Procurement Division for some Head Harness Elastic Webbing Scrap” had been declined; that he had been informed “that this elastic webbing as mentioned above has been referred to your office for disposal”; and requested “full information on this as soon as you are ready, as I am prepared to make a cash offer for the entire lot.”
The Chicago Office wired the plaintiff in reply that it had 15,000 pounds of head harness elastic webbing material for sale at Keokuk, Iowa. The plaintiff immediately requested that a sample be mailed to it and two samples were mailed on November 8, 1944. These samples were taken from ten pounds of samples which had been sent to the Chicago Office from Keokuk and were two elastic head harnesses consisting of three crossing sewn straps each 15 inches long with clinched tips in clean, dry and straight condition without any pyroxylin coated cloth centerpieces. After receiving and inspecting the samples, the plaintiff on November 15, 1944, offered 45 cents a pound for “whatever you have on hand ready, like for instance 15,000 to 20.000 lbs. and we will also accept any additional quantities that you may assemble.” Failing to receive a reply to this offer, the plaintiff on November 27, 1944, wrote to the Chicago Office requesting a reply and was told in a letter two days later that its offer was “still under advisement, but if you are greatly interested, we would suggest that you increase your bid.” The bid was not increased but the offer was accepted, and the Chicago contract dated December 5, 1944, was executed. The plaintiff paid the contract price of $6750.00 on December 18, 1944. Meanwhile, someone in the Chicago Office had apparently discovered that the 15.000 pounds of elastic scrap at Keokuk was soiled, for on November 20, 1944, it was offered as “soiled” to eighty-four prospective bidders, although the plaintiff was not one of them.
On January 8, 1945, the elastic webbing was delivered to the plaintiff in- New York City and was found upon inspection not to be in accordance with the samples but to be “dirty and stained, curled, twisted and wrinkled and the crossing of the straps in a substantial number of head harnesses was bound by a pyroxylin coated cloth centerpiece.” On the same day the plaintiff wrote the Chicago Office that the goods did not conform to the samples or to the contract; that it elected to rescind the contract and was “holding the goods for your order and will return them to such place as may be designated by you.”
There were no representations ■made concerning the quality and condition of the scrap in the negotiations for the Chicago contract, but the samples were of dry, straight and clean material -free of pyroxylin centerpieces, just as the head harnesses had been represented in the negotiations leading up to the cancelled contract. The stipulation is silent as to whether the plaintiff knew of the previously quoted condition No. 1 on the back of the government form used in the execution of the Chicago contract. Three days after the signing of the contract, however, the plaintiff was sent a letter directing its attention to those conditions, -and it made no objection. The trial judge inferred such knowledge on the part of the plaintiff from the prior dealings it had had with the government. We think the inference well justified, especially since the plaintiff had previously offered to pay 78 cents and to take it “as is” and without any warranty or guaranty whatever. In bidding for the goods covered by the Chicago contract which according to the sample were as represented in the negotiations for the can-celled contract it bid but 45 cents. As the trial judge well said, “In disposing of war surplus the Government is not engaged in normal trade and frequently is ignorant of the condition of the goods it sells. Buyers have no right to expect, have notice not to expect, -and contract not to expect' any warranties whatsoever. Plaintiff had such notice. from his dealings and so expressly contracted in this transaction.” It was also found that there was no bad faith shown on the part of the government and we again agree. The failure to send the plaintiff a solicitation for a bid describing the scrap as “soiled” when such notices were sent to many others was reasonably to be explained by the fact that the plaintiff had already made its bid. And the possibility that anyone acting for the government was deliberately representing soiled scrap to be clean is negatived by the fact that at least eighty-four prospective bidders were told it was soiled.
Consequently any implied warranty that the scrap would correspond to the sample which might otherwise have arisen was displaced by the specific agreement that there should be none. New York Personal Property Law Sec. 152; Lumbrazo v. Woodruff, 256 N.Y. 92; 175 N.E. 525, 75 A.L.R. 1017; Burntisland Shipbuilding Co. v. Barde Steel Products Corp., D. C. D. Del., 278 F. 552. Indeed, this record is instinct with the plaintiff’s understanding that the government in effect wp.s saying, “We have 15,000 pounds of elastic scrap-which we think is like this sample and would like to know what you will give for it. But you will have to take it as it is and take your chances as to its condition.” Under such circumstances the old common law rule of caveat emptor applies even now. M. Samuel & Sons v. United States, 61 Ct.Cls. 373; Sachs Mercantile Co. v. United States, 78 Ct.Cls. 801; S. Snyder Corp. v. United States, 68 Ct.Cls. 667; Maguire & Co. v. United States, 273 U.S. 67, 47 S.Ct. 274, 71 L.Ed. 540; Lipshitz & Cohen v. United States, 269 U.S. 90, 46 S.Ct. 45, 70 L.Ed. 175.
Nor does the soiled condition of the elastic webbing offer grounds for rescission for mutual mistake as to a material fact, for by the “as is” terms of the contract the parties agreed that the condition of the goods was to be immaterial. Restatement, Contracts Sec. 502.
The Troy Contract.
Late in April, 1945, an officer of the Chemical Warfare Service, United States Army, told the plaintiffs president that the government had some “gas mask elastic pieces” to sell at the plant of Cluett, Peabody & Company in Troy, N. Y. They were represented to be clean pieces about sixteen inches long, three of which were stitched together in the center without any pyroxylin or non-elastic webbing sewn on. This led to the execution of a contract on May 7, 1945, known herein as the Troy contract, by which the plaintiff agreed to purchase scrap at 40 cents a pound and the government agreed to ship to it from time to time as it accumulated during the ninety-day life of the contract. The plaintiff paid down $1500 when the contract was executed and received two shipments, one on May 14 and the other on May 18, 1945, for which it paid on May 17 and May 21 respectively. After the second shipment arrived, both lots were inspected by the plaintiff and found not to be as represented but to be dirty, with pyroxylin coated centerpieces and mixed with much foreign matter, resembling sweepings, which was of no value. The plaintiff notified the defendant that the shipments were not in accordance with the contract, offered to return them, and demanded the return of its money. But it was told that the next lot would be as represented and was asked to put the goods aside for inspection by a representative of the government. On June 1, 1945, another shipment was received which the plaintiff found upon inspection to be not as represented and it again complained to the government. On June 18, 1945, a fourth shipment arrived. Soon after that the government’s representative offered to allow the plaintiff a credit for part of the goods provided the plaintiff separated the useless part from the rest. Following that inspection and offer of credit the plaintiff, on July 24, 1945, paid in full for all the goods received. On July 31, 1931, the plaintiff received another shipment which did not conform and refused to pay for it. It was for the price of this last shipment that the government sought recovery; the plaintiff counterclaimed to recover the payments it had made. Since the government has withdrawn its appeal we pass without comment the dismissal of its counterclaim.
The right of the plaintiff to recover any of its payments because of the soiled condition of the goods is, as it was under the Chicago contract, foreclosed by the terms of its agreement. Here the contract stated:
“5. Inspection. Bidders are invited and urged to inspect the property to be sold prior to submitting bids. * * * In no case will failure to inspect be considered ground for a claim.
“6. Sale of Property ‘As Is.’’ Unless otherwise specified, all property is sold ‘as is’; the Government makes no guaranty, warranty, or representation, express or implied, as to the kind, size, weight, quality, character, description, or condition of any of the property, or its fitness for any use or purpose; this is not a sale by sample.”
The description of what was sold was simply, “Head Harnesses.” The shipments, however, contained a substantial quantity of foreign matter which did not conform to that description. The fact that a specific and existing quantity of government surplus goods had been represented to contain more conforming material than it did would not constitute a breach of a contract of sale without warranties. Lipshitz & Cohen v. United States, 269 U.S. 90, 46 S.Ct. 45, 70 L.Ed. 175; Mottram v. United States, 271 U.S. 15, 46 S.Ct. 386, 70 L.Ed. 803. Nor can the presence of the non-conforming material here be considered as creating a shortage in quantity. This sale was only of what material became available for disposal at a designated factory, without representation as to quantity.
Since the goods conforming to the contract were mixed with matter which did not conform, the last shipment was properly held to have been rightfully rej ected and the preceding ones could have been rejected for the same reason. Croninger v. Crocker, 62 N.Y. 151; New York Personal Property Law Sec. 125; Uniform Sales Act Sec, 44. But instead of taking that advantage of the government’s breach the buyer elected, with knowledge of the breach and upon the assurance that a credit for the unfit goods would be allowed, to take the first four shipments and to pay the remainder of the purchase price, which it did in part by the application of the advance deposit and in part by check. The buyer thereby accepted the goods and lost the right to rescind the contract. Petersen Oven Co. v. Guarino, 221 App.Div. 146, 223 N.Y.S. 107; Scriven v. Hecht, 2 Cir., 287 F. 853; Southern Gypsum Co. v. United Paperboard Co., 4 Cir., 11 F.2d 58; New York Personal Property Law Sec. 150.
While this precludes recovery of the purchase price by rescission, the acceptance of the goods, accompanied as it was 'by the assertion of the right to a credit, did not bar the recovery of damages for the breach of the contract. Southern Gypsum Co. v. United Paperboard Co., supra; Herbrand Co. v. Lackawanna Steel Co., 6 Cir., 280 F. 11; New York Personal Property Law Sec. 130; Uniform Sales Act Sec. 49. Cf. Lamborn v. Northern Jobbing Co., 7 Cir., 15 F.2d 897, 898, 899. However, the appellant sought no recovery upon such a theory and failed to prove what damages had been sustained.
Ordinarily such a failure would not justify a dismissal of the complaint, for it would not preclude the recovery at least of nominal damages. But nominal damages for breach of contract are not recoverable against the United States. Grant v. United States, 7 Wall. 331, 74 U.S. 331, 19 L.Ed. 194; Marion & Rye Valley Ry. v. United States, 270 U.S. 280, 282, 46 S.Ct. 253, 70 L.Ed. 585; Sioux Tribe of Indians v. United States, 84 Ct.Cls. 16, certiorari denied 302 U.S. 740, 58 S.Ct. 139, 82 L.Ed. 572. Although this suit was brought in the district court under former Sec. 41 (20) of 28 U.S.C. and not in the Court of Claims, the rule is the same regardless of the forum. Cf. United States v. Sherwood, 312 U.S. 584, 589, 590, 61 S.Ct. 767, 85 L.Ed. 1058. Consequently, ‘the appellant could not recover without proof of what damages had actually been suffered. Hooper v. Story, 155 N.Y. 171, 49 N.E. 773; Restatement, Contracts § 331(1).
Judgment affirmed.
. 1948 Revised Judicial Code, 28 U.S.C.A. § 1346.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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sc_decisiontype
|
A
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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.
TRANS WORLD AIRLINES, INC. v. FRANKLIN MINT CORP. et al.
No. 82-1186.
Argued November 30, 1983
Decided April 17, 1984
O’CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, White, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 261.
John N. Romans argued the cause for Trans World Airlines, Inc. With him on the briefs was Robert S. Upton.
Joshua I. Schwartz argued the cause for the United States as amicus curiae in support of Trans World Airlines, Inc. With him on the brief were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Geller, and Michael F. Hertz.
John B. Foster argued the cause and filed a brief for Franklin Mint Corp. et al.
Together with No. 82-1465, Franklin Mint Corp. et al. v. Trans World Airlines, Inc., also on certiorari to the same court.
Alden D. Halford filed a brief for Boehringer Mannheim Diagnostics, Inc., as amicus curiae urging reversal.
Briefs of amici curiae were filed for Marc Hammerschlag et al. by Marc S. Moller; for the Air Transport Association of America by James E. Landry and George S. Lapham, Jr.; and for the International Air Transport Association by Randal R. Craft, Jr., and Peter Hoenig.
Justice O’Connor
delivered the opinion of the Court.
The question presented in this litigation is whether an air carrier’s declared liability limit of $9.07 per pound of cargo is inconsistent with the “Warsaw Convention” (Convention), an international air carriage treaty that the United States has ratified. As a threshold matter we must determine whether the 1978 repeal of legislation setting an “official” price of gold in the United States renders the Convention’s gold-based liability limit unenforceable in this country. We conclude that the 1978 legislation was not intended to affect the enforceability of the Convention in the United States, and that a $9.07-per-pound liability limit is not inconsistent with the Convention.
I
In 1974 the Civil Aeronautics Board (CAB) informed international air carriers doing business in the United States that the minimum acceptable carrier liability limit for lost cargo would thenceforth be $9.07 per pound. Trans World Airlines, Inc. (TWA), has complied with the CAB order since that time. On March 23, 1979, Franklin Mint Corp. (Franklin Mint) delivered four packages of numismatic materials with a total weight of 714 pounds to TWA for transportation from Philadelphia to London. Franklin Mint made no special declaration of value at the time of delivery. The packages were subsequently lost. Franklin Mint brought suit in United States District Court to recover damages in the amount of $250,000. The parties stipulated that TWA was responsible for the loss of the packages. The only dispute concerns the extent of TWA’s liability.
The District Court ruled that under the Convention TWA’s liability was limited to $6,475.98, a figure derived from the weight of the packages, the liability limit set out in the Convention, and the last official price of gold in the United States. The Court of Appeals for the Second Circuit affirmed the judgment, but “rul[ed]” that 60 days from the issuance of the mandate the Convention’s liability limit would be unenforceable in the United States. 690 F. 2d 303 (1982).
In a petition for certiorari to this Court TWA challenged the Court of Appeals’ declaration that the Convention’s liability limit is prospectively unenforceable. In a cross-petition, Franklin Mint contended that the Court of Appeals’ actual holding should have been retrospective as well. We granted both petitions, 462 U. S. 1118 (1983). We now conclude that the Convention’s cargo liability limit remains enforceable in United States courts and that the CAB-sanctioned $9.07-per-pound liability limit is not inconsistent with the Convention. Accordingly, we affirm the judgment of the Court of Appeals but reject its declaration that the Convention is prospectively unenforceable.
II
The Convention was drafted at international conferences in Paris in 1925, and in Warsaw in 1929. The United States became a signatory in 1934. More than 120 nations now adhere to it. The Convention creates internationally uniform rules governing the air carriage of passengers, baggage, and cargo. Under Article 18 carriers are presumptively liable for the loss of cargo. Article 22 sets a limit on carrier liability:
“(2) In the transportation of checked baggage and of goods, the liability of the carrier shall be limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires....
“(4) The sums mentioned above shall be deemed to refer to the French franc consisting of 65% milligrams of gold at the standard of fineness of nine hundred thousandths. These sums may be converted into any national currency in round figures. ” Reprinted (in English translation) in note following 49 U. S. C. § 1502.
In the United States the task of converting the Convention’s liability limit into “any national currency” falls within rulemaking authority which was, for many years including those at issue here, delegated to the CAB under the Federal Aviation Act of 1958 (FAA), 49 U. S. C. § 1301 et seq. International air carriers are required to file tariffs with the CAB specifying “in terms of lawful money of the United States” the rates and conditions of their services, including the cargo liability limit that they claim. The Act forbids any carrier to charge a “greater or less or different compensation for air transportation, or for any service in connection therewith, than the rates, fares, and charges specified in then currently effective tariffs...,” The CAB, for its part, is empowered to reject any tariff that is inconsistent with the FAA or CAB regulations. 49 U. S. C. § 1373(a). CAB powers are to be exercised “consistently with any obligation assumed by the United States in any treaty, convention, or agreement that may be in force between the United States and any foreign country or foreign countries....” 49 U. S. C. § 1502.
During the first 44 years of the United States’ adherence to the Convention there existed an “official” price of gold in the United States, and the CAB’s task of supervising carrier compliance with the Convention’s liability limit was correspondingly simple. The United States Gold Standard Act of 1900 set the value of the dollar at $20.67 per troy ounce of gold. On January 31, 1934, nine months before the United States ratified the Convention, President Roosevelt increased the official domestic price of gold to $35 per ounce. In 1945 the United States accepted membership in the International Monetary Fund (IMF) and so undertook to maintain a “par value” for the dollar and to buy and sell gold at the official price in exchange for balances of dollars officially held by other IMF nations. For almost 40 years the $35-per-ounce price of gold was used to derive from the Convention’s Article 22(2) a cargo liability limit of $7.50 per pound. See, e. g., 14 CFR §221.176 (1972).
When the central banks of most Western nations instituted a “two-tier” gold standard in 1968 the gold-based international monetary system began to collapse. Thereafter, official gold transactions were conducted at the official price, and private transactions at the floating, free market price. App. 21. In August 1971 the United States suspended convertibility of foreign official holdings of dollars into gold. In December 1971 and then again in February 1973 the official exchange rate of the dollar against gold was increased. These changes were approved by Congress in the Par Value Modification Act, passed in early 1972 (increasing the official price to $38 per ounce) and in its 1973 reenactment (setting a $42.22-per-ounce price). Each time, the CAB followed suit by directing carriers to increase the dollar-based liability limits in their tariffs accordingly, first to $8.16 per pound, then to $9.07 per pound.
In 1975 the member nations of the IMF formulated a plan, known as the Jamaica Accords, to eliminate gold as the basis of the international monetary system. Effective April 1, 1978, the “Special Drawing Right” (SDR) was to become the sole reserve asset that IMF nations would use in their mutual dealings. The SDR was defined as the average value of a defined basket of IMF member currencies. In 1976 Congress passed legislation to implement the new IMF agreement, repealing the Par Value Modification Act effective April 1, 1978.
As these developments unfolded, the Convention signatories met in Montreal in September 1975. In No. 4 of the “Montreal Protocols,” the delegates proposed to substitute 17 SDR’s per kilogram for the 250 French gold francs per kilogram in Article 22 of the Convention. Although the United States supported this change, and signed Protocol No. 4, the Senate has not yet consented to its ratification.
The erosion and final demise of the gold standard, coupled with the United States’ failure to ratify Montreal Protocol No. 4, left the CAB with the difficult task of supervising carrier compliance with the Convention’s liability limits without up-to-date guidance from Congress. Although the market price of gold began to diverge from the official price in 1969, the CAB continued to track the official price in Orders converting the Convention’s liability limit into dollars. Under CAB Order 74-1-16, promulgated in 1974, “the minimum acceptable figur[e] in United States dollars for liability limits applicable to ‘international transportation’ and ‘international carriage’... [is $] 9.07 [per pound of cargo].”
Since 1978 the CAB has actively reviewed this $9.07-per-pound liability limit. As of 1979, however, the CAB continued to sanction the use of the last official price of gold— $42.22 per ounce — as a conversion factor. A CAB Order published on August 14, 1978, restated the CAB’s position. The $9.07-per-pound limit remained codified in CAB regulations, see 14 CFR §221.176 (1979), and CAB Order 74-1-16 was still in force. TWA, like other international carriers, remained subject to Order 74-1-16.
HH H-H » — I
The most important issue raised by the parties is whether the 1978 repeal of the Par Value Modification Act rendered the Convention’s cargo liability limit unenforceable in the United States. The Court of Appeals so declared, reasoning that (i) enforcement of the Convention requires a factor for converting the liability limit into dollars and (ii) there is no United States legislation specifying a factor to be used by United States courts. We do not accept this analysis.
There is, first, a firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous congressional action. “A treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed.” Cook v. United States, 288 U. S. 102, 120 (1933). See also Washington v. Washington Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 690 (1979); Menominee Tribe of Indians v. United States, 391 U. S. 404, 412-413 (1968); Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U. S. 138, 160 (1934). Legislative silence is not sufficient to abrogate a treaty. Weinberger v. Rossi, 456 U. S. 25, 32 (1982). Neither the legislative histories of the Par Value Modification Acts, the history of the repealing Act, nor the repealing Act itself, make any reference to the Convention. The repeal was unrelated to the Convention; it was intended to give formal effect to a new international monetary system that had in fact evolved almost a decade earlier.
Second, the Convention is a self-executing treaty. Though the Convention permits individual signatories to convert liability limits into national currencies by legislation or otherwise, no domestic legislation is required to give the Convention the force of law in the United States. The repeal of a purely domestic piece of legislation should accordingly not be read as an implicit abrogation of any part of it. See generally Bacardi Corp. of America v. Domenech, 311 U. S. 150, 161-163 (1940).
Third, Article 39 of the Convention requires a signatory that wishes to withdraw from the Convention to provide other signatories with six months’ notice, formally communicated through the Government of Poland. The repeal of the Par Value Modification Act had a sufficient lead time, but Congress and the Executive Branch took no steps to notify other signatories that the United States planned to abrogate the Convention. To the contrary, the Executive Branch continues to maintain that the Convention’s liability limit remains enforceable in the United States. Brief for United States as Amicus Curiae. In these circumstances we are unwilling to impute to the political branches an intent to abrogate a treaty without following appropriate procedures set out in the Convention itself. See The Federalist No. 64, pp. 436-487 (J. Cooke ed. 1961) (J. Jay).
Franklin Mint suggests that a treaty ceases to be binding when there has been a substantial change in conditions since its promulgation. A treaty is in the nature of a contract between nations. The doctrine of rebus sic stantibus does recognize that a nation that is party to a treaty might conceivably invoke changed circumstances as an excuse for terminating its obligations under the treaty. But when the parties to a treaty continue to assert its vitality a private person who finds the continued existence of the treaty inconvenient may not invoke the doctrine on their behalf.
For these reasons the erosion of the international gold standard and the 1978 repeal of the Par Value Modification Act cannot be construed as terminating or repudiating the United States’ duty to abide by the Convention’s cargo liability limit. We conclude that the limit remains enforceable in United States courts.
> HH
The Court of Appeals correctly recognized that the Convention’s liability limit must be converted into dollars. This requirement derives not from the Convention itself — the Convention merely permits such a conversion — but from the tariff requirements of § 403(a) of the FAA. 49 U. S. C. § 1373(a).
In 1979, when Franklin Mint’s cargo was lost, TWA’s tariffs set the carrier’s cargo liability limit at $9.07 per pound. This tariff had been filed with and accepted by the CAB pursuant to § 403(a), and was squarely consistent with CAB Order 74-1-16. The $9.07-per-pound limit thus represented an Executive Branch determination, made pursuant to properly delegated authority, of the appropriate rate for converting the Convention’s liability limits into United States dollars. We are bound to uphold that determination unless we find it to be contrary to law established by domestic legislation or by the Convention itself.
It is clear, first, that the CAB’s choice of a cargo liability limit of $9.07 per pound does not contravene any domestic legislation. When an official price of gold was set by statute the CAB did, of course, use that price to translate the Convention’s gold-based liability limit into dollars. But when Congress repealed the Par Value Modification Act it did not suggest that the CAB should thereafter use a different conversion factor. Indeed, there is no hint that either of the political branches expected or intended that Act to affect the dollar equivalent of the Convention’s liability limit.
"Whether the CAB’s choice of a $9.07-per-pound limit is compatible with the Convention itself is more debatable. The Convention included liability limits, and expressed them in terms of gold, to effect several different and to some extent contradictory purposes. Our task of construing those purposes is, however, made considerably easier by the 50 years of consistent international and domestic practices under the Convention. For the reasons stated below we conclude that tying the Convention’s liability limit to today’s gold market would fail to effect any purpose of the Convention’s framers, and would be inconsistent with well-established international practice, acquiesced in by the Convention’s signatories over the past 50 years. A fixed $9.07-per~pound liability limit therefore represents a choice by the CAB sufficiently consistent with the Convention’s purposes.
The Convention’s first and most obvious purpose was to set some limit on a carrier’s liability for lost cargo. Any conversion factor will have this effect; in this regard a $9.07-per-pound liability limit is as reasonable as one based on SDR’s or the free market price of gold.
The Convention’s second objective was to set a stable, predictable, and internationally uniform limit that would encourage the growth of a fledgling industry. To this end the Convention’s framers chose an international, not a parochial, standard, free from the control of any one country. The CAB’s choice of a $9.07-per-pound liability limit is certainly a stable and predictable one on which carriers can rely. We recognize however that, in the long term, effectuation of the Convention’s objective of international uniformity might require periodic adjustment by the CAB of the dollar-based limit to account both for the dollar’s changing value relative to other Western currencies and, if necessary, for changes in the conversion rates adopted by other Convention signatories. Since 1978, however, no substantial changes of either type have occurred.
Despite the demise of the gold standard, the $9.07-per-pound liability limit retained since 1978 has represented a reasonably stable figure when converted into other Western currencies. This is easily established by reference to the SDR, which is the new, nonparochial, internationally recognized standard of conversion. On March 31, 1978, for example, one SDR was worth $1.23667; on March 23, 1979, $1.28626. At all times since 1978 a carrier that chose to set its liability limit at 17 SDR’s per kilogram as suggested by Montreal Protocol No. 4 would have arrived at a liability limit in dollars close to $9 per pound.
The CAB’s $9.07-per-pound liability limit also appears to have been a reasonable interim choice for keeping the Convention’s liability limit as enforced in the United States in line with limits enforced by other signatories. As of December 31,1975, 15 nations had signed Montreal Protocol No. 4, suggesting their intent to set a liability limit of 17 SDR’s per kilogram; other nations have chosen to continue using the last official price of gold for converting the Convention’s cargo liability limit into national currencies. Insofar as has been possible in the unsettled circumstances since 1975, the CAB’s choice of a $9.07-per-pound limit has thus furthered the Convention’s intent to set an internationally uniform liability limit.
We recognize that this inquiry into the dollar’s value relative to other currencies would have been unnecessary if the CAB had chosen to adopt the market price of gold for converting the Convention’s liability limits into dollars. Since gold is freely traded on an international market its price always provides a unique and internationally uniform conversion rate. But reliance on the gold market would entirely fail to provide a stable unit of conversion on which carriers could rely. To pick one extreme example, between January and April 1980 gold ranged from about $490 to $850 per ounce. App. 24. Far from providing predictability and stability, tying the Convention to the gold market would force every carrier and every air transport user to become a speculator in gold, exposed to the sudden and unpredictable swings in the price of that commodity. The CAB has correctly recognized that this is not at all what the Convention’s framers had in mind. The 1978 decision by many of the Convention’s signatories to exit from the gold market cannot sensibly be construed as a decision to compel every air carrier and air transport user to enter it.
A third purpose of the Convention’s gold-based limit may have been to link the Convention to a constant value, that would keep step with the average value of cargo carried and so remain equitable for carriers and transport users alike. We recognize that in an inflationary economy a fixed, dollar-based liability limit may fail in the long term to achieve that purpose. Nonetheless, for the reasons that follow, we cannot fault the CAB’s decision to adhere, in the six years since 1978, to a constant $9.07-per-pound liability limit.
The Convention’s framers viewed the treaty as one “drawn for a few years,” not for “one or two centuries.” That it has in fact been adhered to for over half a century is a tribute not only to the framers’ skills but to the signatories’ manifest willingness to accept a flexible implementation of the Convention’s terms. The indisputable fact is that between 1934 and 1978 the signatories, by common if unwritten consent, allowed the value of the liability limit as measured by the free market price of both gold and other commodities to decline substantially, even while the official price of gold was formally maintained. We may not ignore the actual, reasonably harmonious practice adopted by the United States and other signatories in the first 40 years of the Convention’s existence. See Factor v. Laubenheimer, 290 U. S. 276, 294-295 (1933); Day v. Trans World Airlines, Inc., 528 F. 2d 31, 35-36 (CA2 1975), cert. denied, 429 U. S. 890 (1976); Restatement (Second) of Foreign Relations Law of the United States § 147(1)(f) (1965); 2 C. Hyde, International Law 72 (1922). In determining whether the Executive Branch’s domestic implementation of the Convention is consistent with the Convention’s terms, our task is to construe a “contract” among nations. The conduct of the contracting parties in implementing that contract in the first 50 years of its operation cannot be ignored.
As of March 31, 1978, $9.07 per pound of cargo therefore represented a “correct” conversion of the Convention’s liability limit into dollars. Though the purchasing power of the dollar has declined somewhat since then, the $9.07-per-pound liability limit, viewed in light of international practice, cannot be declared inconsistent with the purposes of the Convention and the shared understanding of its signatories.
Moreover, tying the Convention’s liability limit to the free market price of gold would no longer serve to maintain a constant value of carriers' liability. Since 1978 gold has been only “a volatile commodity, not related to a price index, or to the rate of inflation, or indeed to any meaningful economic measure....” A liability limit tied to the gold market might be convenient for a dispatcher of gold bullion, but such a limit would simply force other air transport users and carriers to become unwilling speculators in the gold market. Whatever other purposes they may have had, the Convention’s framers and signatories did not intend to adopt or agree to a liability limit that is fluid, uncertain, and altogether inconvenient. The Convention was intended to reduce, not to increase, the economic uncertainties of air transportation.
V
The political branches, which hold the authority to repudiate the Warsaw Convention, have given no indication that they wish to do so. Accordingly, the Convention’s cargo liability limit remains enforceable in the United States.
Article 22(4) of the Convention permits conversion of the liability limit into “any national currency.” In the United States the authority to make that conversion has been delegated by Congress to the Executive Branch. The courts are bound to respect that arrangement unless the properly delegated authority is exercised in a manner inconsistent with domestic or international law. We conclude that the CAB’s decision to continue using a $42.22 per ounce of gold conversion rate after the repeal of the Par Value Modification Act was consistent with domestic law and with the Convention itself, construed in light of its purposes, the understanding of its signatories, and its international implementation since 1929.
We reject the Court of Appeals’ declaration that the Convention is prospectively unenforceable; the judgment of the Court of Appeals affirming the judgment of the District Court is
Affirmed.
Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T. S. No. 876 (1934), reprinted in note following 49 U. S. C. § 1502.
Had such a declaration been made, and an additional fee paid, Franklin Mint would have been able to recover in an amount not exceeding the declared value. See Convention, Art. 22(2), note following 49 U. S. C. § 1502.
With respect to foreign air transportation FAA powers are now exercised by the Department of Transportation in consultation with the Department of State. 49 U. S. C. §§ 1551(b)(1)(B) and (b)(2). For simplicity this opinion will continue to refer only to the CAB.
See 49 U. S. C. § 1373(a); cf. 14 CFR §§ 221.38(a)(2), 221.38(j) (1983).
49 U. S. C. § 1373(b)(1). CAB regulations require each carrier to notify air transport users of liability limits. “The notice shall be clearly and conspicuously included on or attached to all of [the carrier’s] rate sheets and airwaybills.” 14 CFR § 205.8 (1983).
See Ch. 41, § 1, 31 Stat. 45 (exchange rate stated in terms of grains of gold per dollar).
Presidential Proclamation No. 2072, 48 Stat. 1730, pursuant to the Gold Reserve Act of 1934, 48 Stat. 337.
The domestic enabling legislation was the Bretton Woods Agreements Act, 59 Stat. 512. See Articles of Agreement of the International Monetary Fund, 60 Stat. 1401, 2 U. N. T. S. 39, T. I. A. S. No. 1501 (1945).
Par Value Modification Act, Pub. L. 92-268, §2, 86 Stat. 116.
Par Value Modification Act, Pub. L. 93-110, § 1, 87 Stat. 352.
CAB Order 72-6-7, 37 Fed. Reg. 11384 (1973), implemented (for checked passenger baggage) in 14 CFR §221.176 (1973).
CAB Order 74-1-16, App. 54, 39 Fed. Reg. 1526 (1974), implemented (for checked passenger baggage) in 14 CFR §221.176 (1975).
Second Amendment of Articles of Agreement of the International Monetary Fund, Apr. 30, 1976, [1976-1977] 29 U. S. T. 2203, T. I. A. S. No. 8937.
The SDR was originally created by the IMF nations in 1969. It was then valued at one thirty-fifth of an ounce of gold, or one 1969 dollar. See First Amendment of the Articles of Agreement of the International Monetary Fund, May 31, 1968, [1969] 20 U. S. T. 2775, T. I. A. S. No. 6748. However there is no longer any fixed correspondence between the SDR and gold; the SDR is defined as a specified basket of Western currencies.
Bretton Woods Agreements Act of 1976, Pub. L. 94-564, § 6, 90 Stat. 2660.
Montreal Protocol No. 4, done Sept. 25, 1975, reprinted in A. Lowen-feld, Aviation Law, Documents Supplement 991, 996 (2d ed. 1981). Convention signatories who do not belong to the IMF determine for themselves how the liability limit will be converted into their national currencies. Ibid.
See Lowenfeld, supra, §6.51, at 7-171.
On November 17, 1981, the Senate Committee on Foreign Relations reported in favor of consenting to ratification. But on March 8,1983, by a vote of 50 to 42 in favor of ratification, the Senate failed to reach the two-thirds majority required for consent. The matter remains on the Senate calendar. See S. Exec. Rep. No. 97-45 (1981); 129 Cong. Rec. S2270, S2279 (daily ed. Mar. 8, 1983); S. Exec. Rep. No. 98-1 (1983).
App. 56-57; 39 Fed. Reg. 1526 (1974). TWA is included in the Order’s appendix that lists the carriers at which the Order is directed. Id., at 1527.
Three internal agency memoranda have addressed the problem. J. Golden, Director, Bureau of Compliance and Consumer Protection, CAB, Memorandum (May 20, 1981), App. 33 (urging retention of the $42.22 conversion rate until the CAB and the Departments of Transportation and State have agreed on a new rate); P. Kennedy, Chief, Policy Development Division, Bureau of Consumer Protection, CAB, Memorandum (Mar. 18, 1980), id., at 42 (urging adoption of the free market price of gold as the conversion factor); J. Gaynes, Attorney, Legal Division, Bureau of International Aviation, CAB, Memorandum (Apr. 18,1980), id., at 60 (opposing the Kennedy memorandum recommendation).
CAB Order 78-8-10, 43 Fed. Reg. 35971, 35972 (1978) (liability limit of $20 per kilogram).
Note following 49 U. S. C. §1502. The United States has, in fact, followed this procedure once before. On November 15, 1965, the United States delivered a formal notice of denunciation of the Convention to the Polish Peoples Republic. See Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 546-552 (1967). The notice was later withdrawn.
See Restatement (Second) of Foreign Relations Law of the United States § 153, and Comment c (1965).
However, Article 39(2) of the Convention expressly permits a Convention signatory to withdraw by giving timely notice. Plainly, a party to a treaty of voluntary adhesion can have no need for the doctrine of rebus sic stantibus, except insofar as it might wish to avoid the notice requirement.
In this connection the Court of Appeals stated:
“[In repealing the Par Value Modification Act] Congress thus abandoned the unit of conversion specified by the Convention and did not substitute a new one. Substitution of a new term is a political question, unfit for judicial resolution. We hold, therefore, that the Convention’s limits on liability for loss of cargo are unenforceable in United States Courts.” 690 F. 2d 303, 311 (CA2 1982) (footnote omitted).
In our view Congress has not abandoned any “unit of conversion specified by the Convention” — the Convention specifies liability limits in terms of gold francs and provides no unit of conversion whatsoever. To the contrary, the Convention invites signatories to make the conversion into national currencies for themselves. In the United States the CAB has been delegated the power to make the conversion, and has exercised the power most recently in Order 74-1-16. We are not called upon to “[s]ubstitut[e] a new term,” but merely to determine whether the CAB’s Order is inconsistent with the Convention. That determination does not engage the “political question” doctrine.
The dissent apparently has no difficulty accepting that while Congress selected the conversion rate between gold and the dollar “[o]ur practice was consistent with the Convention,” see post, at 277, n. 6, even though the conversion rate selected bore no relation whatsoever to the dollar price of gold on the free market, see nn. 35, 37, infra. The dissent does not explain why the CAB, whose powers are exercised pursuant to express congressional delegation, was disqualified from setting a similar conversion rate one year after Congress stopped doing so.
Article 22(4) of the Convention expressly permits each signatory nation to convert the Convention’s liability limits into any national currency, but provides no conversion rates for doing so. In this country, 49 U. S. C. § 1373(a) requires such a conversion into dollars. The CAB has been delegated authority under which it may determine the appropriate conversion rate, and it has exercised that authority. Thus, for the extremely narrow purpose of converting the Convention’s liability limits into dollars Congress has indeed “delegated its authority over the currency to the CAB.” See post, at 278, n. 6. We may overrule the CAB’s action only if we conclude that it is inconsistent with the purposes of the Convention or with domestic law.
See generally Heller, The Value of the Gold Franc — A Different Point of View, 6 J. Mar. L. & Com. 73, 94-95 (1974); Asser, Golden Limitations of Liability in International Transport Conventions and the Currency Crisis, 5 J. Mar. L. & Com. 645, 664 (1974); Lowenfeld & Mendelsohn, supra n. 22, at 499; H. Drion, Limitation of Liabilities in International Air Law 183 (1954); Excerpt From Warsaw Convention Conference Minutes, October 4-12, 1929, reprinted at App. 161-164.
See IMF Survey 125 (Apr. 17, 1978); IMF Survey 114 (Apr. 9, 1979).
See S. Exec. Rep. No. 98-1, p. 42 (1983); IMF, International Financial Statistics, Yearbook 521 (1983).
The CAB has in fact accepted airline tariffs in which liability limits are based on SDR’s instead of the fixed $9.07 figure. See, e. g., Passenger Rules, Tariff No. PR-3 (CAB No. 55), Rule 25(D)(l)(a)(ii) (Mar. 30,1983); CAB Order 81-3-143 (Application of British Caledonian Airways Limited (Mar. 24, 1981).
FitzGerald, The Four Montreal Protocols to Amend the Warsaw Convention Regime Governing International Carriage by Air, 42 J. Air Law & Comm. 273, 277, n. 12 (1976).
SDR’s have been adopted as the basis for converting the Convention limits into national currencies in Canada (Currency and Exchange Act: Carriage By Air Act Gold Franc Conversion Regulations, Jan. 13, 1983, 117 Can. Gaz., pt. II, No. 2, at 431 (Jan. 26, 1983)) (reprinted in App. to Brief for Petitioner TWA, at BA36); Italy (Law No. 84, Mar. 26, 1983, 90 Gaz. Uff. (Apr. 1,1983)) (English translation at App. to Brief for Petitioner TWA, at BA37); the Republic of South Africa (Carriage by Air Act, No. 17 of 1946, as amended by No. 5 of 1964 and No. 81 of 1979, Stat. Rep. S. Afi*. (Issue No. 13) 15, implemented by Dept. of Transport Notice R2031 (Sept. 14, 1979
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:
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sc_casedisposition
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
WEADE et al. v. DICHMANN, WRIGHT & PUGH, INC.
No. 179.
Argued February 1, 1949.
Decided June 27, 1949.
William E. Leahy argued the cause for petitioners. With him on the brief were Michael F. Keogh, J. Robert Carey, Richard H. Love,.Edward L. Breeden, Jr., Walter E. Hoffman and William J. Hughes, Jr.
Leavenworth Colby argued the cause for respondent. With him on the brief were Solicitor General. Perlman, Assistant Attorney General Morison and Paul A. Sweeney.
Mr. Justice Reed
delivered the opinion of the Court,
On August 3, 1945, at Old Point Comfort, Virginia, petitioners, Mrs. Lillian A. Weade and Mrs. Roberta L, Stinemeyer, purchased tickets and embarked as passengers on the Meteor, a steamboat owned by the United States through the War Shipping Administration and operating between Norfolk, Virginia, and Washington, D. C. The ladies retired to their stateroom about 11:00 p. m. and because of the warm weather opened both the glass and the shutter of the window which faced onto the boat deck. During the night the second cook of the Meteor entered the stateroom through the open window and raped. Mrs. Weade, who was sleeping in the lower berth. -Mrs. Stinemeyer suffered fright and shock from witnessing this atrocity. The perpetrator of the crime was subsequently tried, convicted, and executed.
This case involves the liability of a general agent to passengers under a contract similar to that discussed in Cosmopolitan Shipping Co. v. McAllister, ante, p. 783, decided this day. The agency agreement covered passenger boats through an addendum to the contract providing for additional services by the general agent.
Petitioners, Lillian A. Weade and her husband, instituted a civil action for damages against respondent in the United States District Court for the Eastern District of Virginia. The husband alleged as his damages loss of consortium and the expenses of the hospitalization of his wife. Petitioner Mrs. Stinemeyer brought a separate civil action for her damages in the same court. Jurisdiction in both actions was based on diversity of citizenship, and the two civil actions were consolidated for trial. In addition Mrs. Weade filed a libel in admiralty against the United States, which action has been continued pending the final determination of the present proceedings.
The complaint of Mr. and Mrs. Weade alleged, so far as now important, that the steamboat was operated as a common carrier by respondent and that petitioners were injured through the failure of respondent to provide adequate protection for its passengers from the personal misconduct of its employees, and through the failure to. use due care in the selection of reliable, careful, and competent employees. The complaint of Mrs. Stinemeyer is substantially the same as to the specifications of negligence, though it did not assert that respondent itself was a common carrier, but did allege that the injury occurred through the act of respondent’s employees. The respondent’s answer denied that the vessel was operated by it as a common carrier and that the master and crew of the vessel were its employees. The answer further alleged that the vessel was operated by the War Shipping Administration, and that respondent only performed certain services for the owner of the ship as general agent in accordance with the standard service agreement.
The jury as triers of fact in this civil proceeding were instructed as a matter of law that by virtue of the contract respondent was the actual operator of the vessel as a common carrier owing the highest degree of care to its passengers. The trial judge further charged that, as a common carrier, this duty to exercise the highest degree of care extended to all acts of the carrier and included the providing of safe accommodations and protection for passengers, the providing of a suitable number of watchmen, and the selection of competent, careful, and sober employees. The jury returned verdicts for petitioners, and the trial judge denied the motion of the respondent for judgment notwithstanding the verdict, stating as his reason therefor: “While the case of Hust v. Moore-McCormack Lines, Incorporated, 328 U. S. 707, is not precisely in point, it is my view that it is controlling so far as the liability of the defendant is concerned.” On appeal-the Court of Appeals for the Fourth Circuit reversed and held that under Caldarola v. Eckert, 332 U. S. 155, respondent was not the owner pro hac vice in possession and control of the vessel and thus could not be liable as a common carrier for the safety of the passengers. Dichmann, Wright & Pugh v. Weade, 168 F. 2d 914.
Under our holding today , in No. 351, Cosmopolitan Shipping Co. v. McAllister, ante, p. 783, the instructions referred to above were erroneous. Respondent was not the owner pro hac vice, was not a common carrier operating the vessel, and was not the employer of the master or crew. The trial of the' present proceeding revolved around these questions and did not concern the problem of negligence on the part of respondent or of its own agents in handling the ship or créw on voyage as an agent of the United States as distinguished from an employer of the master and crew or owner pro hac vice.
Petitioners urge in point 3 of their brief as a ground for upholding the decision of the trial court that respondent, because of the duties imposed upon it by the General Agency Agreement, was liable as a common carrier as far as the public was concerned. In support of» this contention they point to the duties of the general agent to issue tickets, maintain the vessel in the service directed by the United States, maintain terminals and offices, arrange for the loading and unloading of passengers, arrange for advertising, provision the ship, and procure officers and crew for hire by the master. The performance of such shoreside' duties, however, does not make the agent liable as a common carrier to the public or anyone.
At the insistence of the Navy, the War Shipping Administration in-1945 instituted a nightly service of two steamboats between Norfolk and Washington. The name given to this service was the Washington-Hampton Roads Line, and the Meteor was one of the two vessels employed therein. These two vessels were assigned to respondent as general agent by a passenger addendum to the standard GAA 4-4-42 agreement, under which respondent had been general agent for some twenty cargo vessels. It will be noted that, under Article 3A (f) of the addendum, the general agent was to arrange for the transportation of passengers and to issue tickets for this purpose. The ticket, which is set out in the margin,4 bears the express notation that the steamboat line was “Operated by United States of America, War Shipping Administration,” and. that respondent was serving in the capacity of an agent.
Respondent’s duties were to service the ships and to “arrange for the transportation” of passengers on them. The duty of a common carrier, on the other hand, is to transport for hire whoever employs it. Here the contract called for the actual transportation to bé carried out by the War Shipping Administration. The respondent’s duties ended at the shore ling. Cosmopolitan Shipping Co. v. McAllister, supra. The cases cited by petitioner holding a transportation agent liable as a common carrier involve situations where the actual movement of goods or passengers was carried out by the agent. Under the contract respondent here was not in any way engaged in the carriage of passengers between Norfolk and Washington and had never held itself out to the public as ready to engage in such traffic. As a mere arranger of transportation it does not incur the liability of a common carrier.
Apart from their reliance upon respondent’s control of the vessel on voyage under the agency contract, petitioners further argue that respondent as an agent is independently liable for its negligence in procuring unsuitable crew members. This theory of liability was not relied upon at the trial.. Instructions upon the point were not given or requésted. The court did charge that as principal and operator of the vessel the respondent was responsible for any tort committed by the steamship personnel and as a common carrier was under the duty to exercise the highest degree of care for the safety of the passengers including the selection of personnel. It was upon the basis of respondent’s liability as common carrier that petitioners developed their causes of action, and upon that theory the jury, under the instructions discussed above, returned a verdict in their favor. At the conclusion of the trial judge’s charge, counsel for petitioners stated,. “If your Honor please, we have no exceptions.” Under these circumstances, error cannot be urged as to this point. See Rule 8(1), Supreme Court of the United States;- Rule 51 of the Federal Rules of Civil Procedure; United States v. Atkinson, 297 U. S. 157.
. By the decision below, the trial court was directed to enter a judgment for respondent, which had filed a motion for judgment notwithstanding the verdict. As there were suggestions in the complaint and evidence of alleged liability of respondent to petitioners for respondent’s own negligence while acting as general agent, this direction should not have been given. See Brady v. Roosevelt S. S. Co., 317 U. S. 575. The decision is modified so as to eliminate the direction to enter judgment.
We express no opinion as to what circumstances might fix liability upon the respondent for its own actions as general agent.
Affirmed as modified.
Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Murphy and Mr. Justice Rutledge dissent.
See note 3, infra, and 46 C. F. R. Cum. Supp. § 306.44.
See Cosmopolitan Shipping Co. v. McAllister, ante, p. 783.
“Whereas,, the United States of America (Herein called the ‘United States’) acting by and through the Administrator, War Shipping Administration, and Dichmann, Wright & Pugh, Inc. (herein called the ‘General Agent’) entered into an Agreement (Contract-WSA-4098) dated January 9, 1943 (herein called the ‘Service Agreement’) whereby the United States appointed the General Agent as its agent to manage and conduct the business of cargo vessels assigned to it by the United States; and
“Whereas, it is desirable to have as far as practicable both cargo vessels and passenger vessels operated under the uniform provisions of one agreement.
“Now, Therefore:
“The United States and the General Agent agree that passenger vessels heretofore or hereafter allocated to the General Agent to conduct the business of the vessels as agent of the United States shall be. governed by the provisions of the Service Agreement modified as follows:
“Section 1. Article 3A of the Service Agreement is hereby amended by adding.a provision following subsection (e) thereof as follows:
“‘(f) Shall arrange for the transportation of passengers when so directed, and issue or cause to be issued to such passengers customary passenger tickets. After a uniform passenger ticket shall have been adopted by the United States, such passenger ticket shall be used in all cases as soon as practicable after receipt thereof by the General Agent. Pending the issuance of such uniform passenger ticket, the General Agent may continue to use its customary form of passenger ticket.’
“Section 2. The vessels to which the Service Agreement will apply by operation of this Part II, are as listed on Exhibit B attached hereto and made a part hereof, and such additional vessels as may from time to time be assigned to the General Agent by letter agreement.
■■“In witness whereof . . . .”
“Issued by
“Washington-Hampton Roads Line
“Operated by United States of America, War Shipping Administration
“One First Class Passage
“Norfolk, or Old Point Comfort Va. to Washington, D. C.
“Subject to the Following contract:
“This ticket is void unless officially stamped and dated.
“Baggage valuation is limited- to $100 for and adult and $50 for a child, unless purchaser hereof declares a greater valuation at time baggage is presented for transportation and pays excess valuation charges according to tariff rates, rules and regulations.
“The company will under no circumstances be responsible for any moneys or valuables unless deposited with the Purser on Steamer,, nor will they be responsible for any baggage unless properly checked.
“This ticket is limited for passage within thirty days from date of sale stamped on back.
“Dichmann, Wright & Pugh, Inc., Agent.
“I. S. Walker-, Gen. Passenger Agent.”
Niagara v. Cordes, 21 How. 7, 22; Washington ex rel. Stimson Lumber Co. v. Kuykendall, 275 U. S. 207, 211; United States v. Brooklyn Eastern District Terminal, 249 U. S. 296, 305-306. Cf. Lehigh Valley R. Co. v. United States, 243 U. S. 444; I. C. C. v. Delaware, Lackawanna & Western R. Co., 220 U. S. 235.
United States v. Brooklyn Terminal, 249 U. S. 296; Union Stock Yard Co. v. United States, 308 U. S. 213.
See 2 Restatement, Agency § 358.
Globe Liquor Co. v. San Roman, 332 U. S. 571; Cone v. West Virginia Paper Co., 330 U. S. 212.
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_respond1_1_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
MOVIE SYSTEMS, INC., an Iowa corporation, Appellee, v. MAD MINNEAPOLIS AUDIO DISTRIBUTORS, A DIVISION OF SMOLIAK & SONS, INC., a Minnesota corporation, and of Video Club, Inc.; and Gary Smoliak, Appellants.
No. 82-1799.
United States Court of Appeals, Eighth Circuit.
Submitted March 16, 1983.
Decided Sept. 2, 1983.
Marc G. Kurzman, Kurzman, Shapiro, Manahan & Partridge, Minneapolis, Minn., Jonathan T. Howe, Joseph L. Nellis, Washington, D.C., for appellants.
Thomas A. Keller, III, Robert A. Brunig, O’Connor & Hannan, Minneapolis, Minn., for appellee; Raymond W. Conley, General Counsel, Des Moines, Iowa, of counsel.
Before ROSS and JOHN R. GIBSON, Circuit Judges, and ROBERTS, District Judge.
The Honorable Ross T. Roberts, United States District Judge for the Western District of Missouri, sitting by designation.
JOHN R. GIBSON, Circuit Judge.
MAD Minneapolis Audio Distributors and its manager, Gary Smoliak, appeal from the district court order denying Movie Systems’ motion for adjudication of civil contempt. Appellants principally contend that (1) the order modifies, rather than clarifies, a prior injunction by eliminating its conditions and making the injunction absolute; (2) the modification was improperly granted in the absence of changed circumstances and without an evidentiary hearing; and (3) the modified injunction violates the specificity requirements of Fed.R.Civ.P. 65(d). We affirm the order of the district court.
Appellee Movie Systems, Inc., a licensee of Home Box Office (HBO), has the exclusive right to distribute HBO’s television entertainment service to paying subscribers in the metropolitan Minneapolis-St. Paul area. To receive the HBO signal, subscribers are provided with special antennas and down-converters to connect to their television sets. In March 1982, however, appellants MAD and Gary Smoliak and others advertised and sold microwave antenna systems that enabled homeowners to intercept Movie Systems’ HBO programming.
On April 28, 1982, Movie Systems commenced an action in the district court, alleging that MAD, Smoliak, seven other dealers and their managers had violated 47 U.S.C. § 605, 47 C.F.R. § 21.903,18 U.S.C. § 2511, and Minn.Stat. § 626A.01-.23, had engaged in unfair competition, and had been unjustly enriched by selling microwave antennas and down-converters. The defendants counterclaimed, alleging that Movie Systems had violated sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2, and section 3 of the Clayton Act, 15 U.S.C. § 14, by establishing and seeking to enforce illegal tie-in arrangements relative to the ownership of receiving antennas, and that Movie Systems had violated defendants’ constitutional rights and had engaged in defamatory conduct.
On May 28, 1982, Movie Systems moved for a preliminary injunction. Movie Systems, MAD, and Smoliak submitted the matter to the court on affidavits. On June 11, 1982, the district court heard oral argument. Later that day the district court entered an order granting the motion. The court concluded that Movie Systems had met its burden of establishing the prerequisites for the issuance of a preliminary injunction, and found that it had demonstrated a likelihood that it will establish certain facts, including:
gg. The designed and intended use of the microwave antennas sold by the above-named defendants is to receive [Movie Systems’] HBO programming. Although these microwave antennas have other limited uses besides receptions of HBO programming, the use for which Defendants were and are selling the equipment was not and is not for such uses.
The June 11 order enjoined defendants from:
(1) Interfering with, interrupting, intercepting, receiving, divulging or using programming transmitted by Plaintiff Movie Systems, Inc., without its authorization;
(2) Assisting, aiding, abetting or conspiring with any other person to intercept, receive, divulge or use programming transmitted by Plaintiff Movie Systems, Inc., without its authorization;
(3) Manufacturing, selling, installing, possessing, purchasing, distributing, leasing, marketing, furnishing, advertising or offering for sale or installation equipment, parts and components thereof, or plans to construct such equipment, if such equipment, parts or plans are capable of, or could be used in intercepting programming transmitted by Plaintiff Movie Systems, Inc., or assisting others in such activities, if:
(a) He, she, it or they advertise or communicate, either orally or in- writing, that his, her, its or their product is capable of or could be used in the interception, reception or use of any programming transmitted by Plaintiff Movie Systems, Inc., or of Home Box Office programming; or
(b) He, she, it or they know or have reason to believe that a purchaser, dis-tributee or lessee in acquiring the product from him, her, it or them, acquires it with the intent of intercepting, receiving or using programming transmitted by Plaintiff Movie Systems, Inc., or Home Box Office programming.
On June 18, 1982, Movie Systems filed a motion for adjudication of civil contempt together with supporting affidavits. A hearing on the contempt motion was held on June 22, 1982, with defendants supplying the court with affidavits in opposition. That same day, the district court issued an order denying the motion, stating:
After consideration of the arguments of counsel at the hearing this morning as well as their written submissions to the record, the Court believes that the difficulties that have led to plaintiffs motion for an adjudication of civil contempt can best be resolved by a statement of clarification on the correct interpretation of the Court’s preliminary injunction.
Among other things, the preliminary injunction orders defendants to refrain from sales of the electronic devices in question if they “know or have reason to believe” that the person acquiring the product intends to use it for receiving plaintiff’s programming. The affidavits on file demonstrate that there has been extensive advertising as well as news media coverage of the capabilities of the equipment supplied by defendants. Also, the Court has found that “[although these microwave antennas have other limited used [sic] besides reception of HBO programming, the use which Defendants were and are selling the equipment was not and is not for such uses.” It is apparent that defendants should “know” or at least “have reason to believe” (emphasis added) that a person acquiring the equipment from them has the intent of receiving plaintiff’s programming. Thus, the preliminary injunction prohibits all sales by defendants of equipment having this capability. Similar analysis would apply to the other activities that are prohibited by the preliminary injunction.
This appeal from the June 22 order followed.
I. Jurisdiction
Movie Systems argues that this court lacks jurisdiction to consider the appeal directed against the June 22 order of the district court, which by its terms was a clarification of the preliminary injunction, and not an order granting, continuing, or modifying an injunction within the meaning of 28 U.S.C. § 1292(a)(1).
The preliminary injunction of June 11, 1982 prohibited sales of equipment with the capability of intercepting programs transmitted by Movie Systems if MAD and the other defendants (1) advertised or communicated that the product was capable of or could be used in interception or reception of Movie Systems’ programming, or (2) knew or had reason to believe that a purchaser was acquiring the product with the intent of intercepting or receiving Movie Systems’ programming. The June 22 order referred to the finding in the June 11 order that while the microwave antennas had other limited uses besides reception of Movie Systems’ programming, MAD and the other defendants were not selling such equipment for such uses. Based on this finding and the affidavits on file, the district court concluded that the defendants should know or at least have reason to believe that a person purchasing the equipment has the intent of receiving Movie Systems’ programming. The court then ordered the prohibition of all sales by defendants of equipment having this capability.
We think it evident that the June 22 order expands and modifies the June 11 preliminary injunction by eliminating its two stated conditions and by making the prohibition on sales absolute. This would bring the June 22, 1982 order within the plain language of 28 U.S.C. § 1292(a)(1) as it modifies the preliminary injunction. It is also abundantly clear that the June 22, 1982 order continues enforcement of the injunction of June 11, 1982 and in this additional respect falls within the plain language of 28 U.S.C. § 1292(a)(1). See Sperry Corp. v. City of Minneapolis, 680 F.2d 1234, 1237 (8th Cir.1982).
Movie Systems argues that there was not a motion to modify the preliminary injunction before the court, and thus the June 22 order could not properly be characterized as denial of a motion to modify an injunction to bring it within the language of the statute. The district court, however, found that the motion for contempt could best be dealt with by issuing the order it termed a clarification. We do not believe that the action of the district court was unresponsive to the relief sought by Movie Systems, and we reject its arguments that the June 22 order was not a modification of the earlier preliminary injunction.
II. The June 22 Order
A.
Relying on United States v. Swift, 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932) and Humble Oil & Refining Co. v. American Oil Co., 405 F.2d 803 (8th Cir.), cert. denied, 395 U.S. 905, 89 S.Ct. 1745, 23 L.Ed.2d 218 (1969), MAD contends that the modification of the preliminary injunction required a strong showing of new conditions and circumstances making the original injunction oppressive, and that the evidence before the district court was insufficient to justify the modification. The cases cited, however, deal specifically with the modification of a final injunctive decree, not with a preliminary injunction as involved in this case. In modifying a preliminary injunction, a district court is not bound by a strict standard of changed circumstances but is authorized to make any changes in the injunction that are equitable in light of subsequent changes in the facts or the law, or for any other good reason. See generally 7 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 65.07 (2d ed. 1982); [Interim Binder] Federal Procedure, Lawyers Edition § 47.61 (1981).
We regard the supporting affidavits that were filed with the motion for civil contempt on June 18 as providing a sufficiently good reason for modifying the June 11 injunction. One of the affidavits attached a newspaper article of an interview with MAD’s counsel, Marc Kurzman, with direct quotations that his clients would continue to sell the antennas, but without reference to HBO. The affidavits further revealed that MAD continued its sales efforts after the June 11 order. When one of MAD’s employees was approached by a Movie Systems’ employee who posed as a customer and who asked for an HBO antenna, the MAD employee said he could not sell him one then but encouraged the customer to come back another day and to state an innocuous reason. On another occasion, when a Movie Systems’ employee asked to purchase an HBO antenna, MAD responded by informing the customer of distance and line-of-sight requirements in relation to the microwave transmitter which is located atop the IDS Tower and which transmits Movie Systems’ HBO programming, and by referring the customer to another sales location for the purchase.
This elaborate winking process is not contradicted by defendants’ affidavits. Rather, they uniformly establish the continued sale of antennas and down-converters in a studied effort to fall within the conditions of the June 11 order so as to minimize its effects. The affidavit of Marc Kurzman, counsel for MAD, attempted to correct certain statements appearing in the newspaper article in question, but did not dispute the continuing sales of equipment within the conditions set forth in the June 11 order. Kurzman’s affidavit made plain that he had discussed the June 11 order with his clients and that he instructed them that they could sell the antennas to “all but those people they knew, or should know, intended to use same to intercept HBO/MSI programming.”
The remainder of defendants’ affidavits illustrate further the nature of the sales efforts that were made. Carl Hartell, manager of Communications Center in Minneapolis, admitted telling customers who did not request information about HBO that they would not get into trouble for using a multipurpose microwave antenna and instructed potential customers in its multiple uses; moreover, when asked what would happen if “the signal” were scrambled, the affiant responded “with words to the effect that it would cost them ‘beaucoup bucks’ to scramble a signal.” The affidavit of Peter Vitale, owner of Vitale TV & Stereo Co. in St. Paul, disclosed that he placed a sign in his store warning customers that he sold “multipurpose microwave antennas” rather than “HBO antennas” and that “[i]f the customer says he or she is going to use the antenna for HBO, we will not sell it to him.” Finally, in an interview attached to Gary Smoliak’s affidavit, an employee of MAD stated, “We were told that we could not sell the microwave antennas to any person who made it known that they were going to use it for the purpose of receiving HBO [but] if someone asked us for [a] microwave antenna, they could purchase one.”
It is evident that this pattern of sales activities prompted the district court to reexamine its earlier findings in the June 11 order and to conclude that a clarification of the preliminary injunction — which we believe to be a modification of the injunction — was in order. The district court was justified in considering the post-June 11 activities of MAD, Smoliak, and the other defendants, and we find no abuse of discretion in the entry of the June 22 order. See Medtronic, Inc. v. Gibbons, 684 F.2d 565, 567 (8th Cir.1982).
B.
MAD also argues that the June 22 order improperly modifies an injunction without an evidentiary hearing because affidavits were presented contradicting the assumption of a sole use for the antennas. In so arguing, it is evident that the source of MAD’s complaint is the district court’s finding in paragraph gg of the June 11 order that the designed and intended use of defendants’ equipment was solely to receive Movie Systems’ HBO programming. The district court entered the June 11 order after considering the affidavits submitted by both parties, and a videotape offered by MAD. Counsel for MAD was twice asked and confirmed that he intended to submit his case by affidavit. Having willingly submitted affidavits which MAD knew or should have known to be in conflict at the time of the June 11 hearing — as all the affidavits were then on file — and having filed no appeal from the June 11 order, MAD cannot now be heard to complain about factual findings made at that time.
With respect to the affidavits filed for and against the motion for civil contempt, discussed above, we do not understand MAD to argue that a material factual controversy exists. Although MAD did raise an issue of contrary affidavits during the contempt hearing, it has failed to follow up and urge any conflict in these affidavits on appeal. On the issue of continuing sales activities, which is the limited issue before us, we do not find these affidavits contradictory so as to require an evidentiary hearing. We have earlier said:
By its nature, an application for a preliminary injunction often requires an expeditious hearing and decision. In order to overcome the problems that would be created in attempting to gather the necessary witnesses, it has often been held that affidavits may be received at a hearing on a motion for a preliminary injunction.
Wounded Knee Legal Defense/Offense Committee v. Federal Bureau of Investigation, 507 F.2d 1281, 1286-87 (8th Cir.1974). Accordingly, we find no impropriety in the district court’s reliance on these affidavits.
C.
MAD’s further argument that the June 22, 1982 order lacks specificity is without merit. The order prohibits “all sales by defendants of equipment having [the] capability” of receiving HBO programming, and thus gives explicit notice of precisely what conduct is forbidden. That is all that is required. See Schmidt v. Lessard, 414 U.S. 473, 476, 94 S.Ct. 713, 715, 38 L.Ed.2d 661 (1974) (per curiam).
We have carefully reviewed MAD’s remaining arguments, including the applicability of James River Flood Control Association v. Watt, 680 F.2d 543 (8th Cir.1982) (per curiam), to the modification of a preliminary injunction, and find them all to be without merit. Other issues raised for the first time at oral arguments will not be considered.
III. Conclusion
A recitation of the procedural history of this case with the preliminary injunction of June 11, the order of June 22 modifying its scope, and the hearing of June 25 to stay enforcement of the injunction pending appeal, provides an example of how extended procedural maneuvers delay the ultimate decision of whether a permanent injunction should issue. We feel it appropriate that the district court schedule a hearing on the permanent injunction at the earliest possible time.
The order of the district court is affirmed.
. The Honorable Earl R. Larson, United States Senior District Judge for the District of Minnesota.
. The other defendants were dismissed by orders entered July 15 and 20, 1982.
. Movie Systems conceded as much at oral arguments when it stated, “[W]e were looking for a contempt hearing .... I think it’s fair to say ... [we] were all surprised to get a modification.”
. Lawyer Cites Loophole for ‘HBO Antenna’ Sales, Minneapolis Star & Tribune, June 16, 1982, at 1C.
. Moreover, at no time during the June 22 hearing did MAD ask to present testimony although it did refer to a hearing on its motion for judgment on the pleadings which was to be scheduled on the following Monday. The district court specifically referred to a conflict in the affidavits insofar as it related to contempt and suggested that testimony be taken because of the conflict. Movie Systems’ counsel commented upon witnesses being available in the courtroom, but MAD’s counsel made no such statements. When the parties appeared before the district court on June 25, 1982, the subjects of discussion were primarily the timeliness of Movie Systems’ response to MAD’s motion for judgment on the pleadings, and the requirements for issuing a stay pending appeal. Although counsel for MAD made brief reference to the court’s lack of opportunity to hear witnesses because of scheduling problems, this ignores the fact that he failed to make a timely request for an evidentiary hearing at either the June 11 or June 22 proceedings. The district court observed that the June 22 order was made to prevent the necessity of extended contempt hearings which might result in fines or imprisonment for defendants found in contempt.
. In a supplemental letter to the court following oral arguments, counsel for MAD advised the court of additional case law which he argued prohibits the issuance of a preliminary injunction without an evidentiary hearing. Medeco Security Locks, Inc. v. Swiderek, 680 F.2d 37, 38 (7th Cir.1981) (per curiam); Forts v. Ward, 566 F.2d 849, 851 (2d Cir.1977); Marshall Durbin Farms, Inc. v. National Farmers Org., Inc., 446 F.2d 353, 356 (5th Cir.1971); Consolidated Coal Co. v. Disabled Miners of S.W. Va., 442 F.2d 1261, 1269-70 (4th Cir.), cert. denied, 404 U.S. 911, 92 S.Ct. 228, 30 L.Ed.2d 184 (1971); Detroit & Toledo Shore Line R.R. v. Brotherhood of Locomotive Firemen & Enginemen, 357 F.2d 152, 153-54 (6th Cir.1966); Sims v. Greene, 161 F.2d 87, 88 (3d Cir.1947). We have carefully reviewed these cases from other circuits and do not find them to be persuasive under the facts presented here.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
sc_respondentstate
|
60
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
BARR v. MATTEO et al.
No. 409.
Decided December 9, 1957.
Solicitor General Rankin, Assistant Attorney General Doub, Paul A. Sweeney and Bernard Cedarbaum for petitioner.
Per Curiam.
The petition for certiorari is granted. The petition presents this question: “Whether the absolute immunity from defamation suits accorded officials of the Government with respect to acts done within the scope of their official authority, extends to statements to the press by high policy-making officers, below cabinet or comparable rank, concerning matters committed by law to their control or supervision.”
In the District Court and the Court of Appeals the litigation was not so confined. By his motion for a directed verdict and requested instructions petitioner also presented to the District Court the defense of qualified privilege. On appeal to the Court of Appeals petitioner, in his brief, raised only the question of absolute immunity, but on reconsideration he urged the court also to pass on the defense of qualified privilege. This that court refused to do on the ground that petitioner, because of the position he had initially taken on the appeal, had waived the defense. In so holding, the court relied on its Rule 17 (c)(7), requiring an appellant to set forth in his brief a statement of the points on which he intends to rely, and Rule 17 (i), which provides that “Points not presented according to the rules of the court, will be disregarded, though the court, at its option, may notice and pass upon a plain error not pointed out or relied upon.” 244 F. 2d 767.
The scope of the litigation in the Court of Appeals cannot lessen this Court’s duty to confine itself to the proper exercise of its jurisdiction and the appropriate scope of judicial review. Thus, an advisory opinion cannot be extracted from a federal court by agreement of the parties, see Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281, 289, and no matter how much they may favor the settlement of an important question of constitutional law, broad considerations of the appropriate exercise of judicial power prevent such determinations unless actually compelled by the litigation before the Court. United States v. C. I. 0., 335 U. S. 106, 110. Likewise, “Courts should avoid passing on questions of public law even short of constitutionality that are not immediately pressing. Many of the same reasons are present which impel them to abstain from adjudicating constitutional claims against a statute before it effectively and presently impinges on such claims.” Eccles v. Peoples Bank, 333 U. S. 426, 432. Especially in a case involving on the one hand protection of the reputation of individuals, and on the other the interest of the public in the fullest freedom of officials to make disclosures on matters within the scope of their public duties, this Court should avoid rendering a decision beyond the obvious requirements of the record. In the present case a ground far narrower than that on which the Court of Appeals rested its decision, the defense of qualified privilege, was consistently pressed in the District Court and in fact urged in the Court of Appeals itself. In these circumstances we think that the broad requirements of judicial power and its proper exercise should lead to consideration of the defense of qualified privilege.
To that end, the judgment of the Court of Appeals is vacated, and the case remanded to that Court with directions to pass upon petitioner’s claim of a qualified privilege.
Mr. Justice Black, with whom The Chief Justice joins, agrees with the disposition of this case as expressed in the last paragraph.
Mr. Justice Brennan would grant the petition and consider the question presented.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
sc_casedisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
CASSELL v. TEXAS.
No. 46.
Argued November JO, 1949. —
Decided April 24, 1950.
Chris Dixie argued the cause for petitioner. With him on the brief were L. N. D. Wells, Jr. and W. J. Durham.
Joe R. Greenhill, First Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Price Daniel, Attorney General, and E. Jacobson, Assistant Attorney General.
Mr. Justice Reed
announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Black and Mr. Justice Clark concurred.
Review was sought in this case to determine whether there had been a violation by Texas of petitioner’s federal constitutional right to a fair and impartial grand jury. The federal question was raised by a motion to quash the indictment on the ground that petitioner, a Negro, suffered unconstitutional discrimination through the selection of white men only for the grand jury that indicted him. After full hearing, the trial court denied the motion, and this action was sustained by the Court of Criminal Appeals of Texas in affirming petitioner’s conviction. Cassell v. State, 154 Tex. Cr. R. -, 216 S. W. 2d 813.
The Court of Criminal Appeals accepted the federal rule that a Negro is denied the equal protection of the laws when he is indicted by a grand jury from which Negroes as a race have been intentionally excluded. Cassell v. State, supra, 154 Tex. Cr. R. at -, 216 S. W. 2d at 819; Neal v. Delaware, 103 U. S. 370, 394; Smith v. Texas, 311 U. S. 128, 130; Hill v. Texas, 316 U. S. 400, 404; Akins v. Texas, 325 U. S. 398, 403. It was from an examination of facts that the court deduced its conclusion that racial discrimination had not been practiced. Since the result reached may deny a federal right, we may reexamine the facts to determine whether petitioner has sustained by proof his allegation of discrimination. Certiorari was granted (336 U. S. 943) to consider petitioner’s claim that in this case Negroes were omitted from the list of grand jurymen either because of deliberate limitation by the Dallas County jury commissioners, or because of failure by the commissioners to acquaint themselves with available Negroes.
Acting under the Texas statutes, the Dallas County grand-jury commissioners chose a list of sixteen males for this September 1947 grand jury from citizens eligible under the statute. The judge chose twelve of these for the panel. No challenge is now made to the fairness of this statutory system. We have approved it.
Petitioner’s attack is upon the way the statutory method of grand-jury selection has been administered by the jury commissioners. One charge is that discrimination must have been practiced because the Negro proportion of grand jurors is less than the Negro proportion of the county’s population. Under the 1940 census the total population of Dallas County was 398,564, of whom 61,605 were Negroes. This is about 15.5%. In weighing this matter of custom, we limit ourselves, as do the parties, to the period between June 1, 1942, when Hill v. Texas, supra, was decided, and November 1947, when petitioner was indicted. There were 21 grand juries in this period; of the 252 members of the panels, 17, or 6.7%, were Negroes. But this apparent discrepancy may be explained by the fact that Texas grand jurors must possess certain statutory qualifications. Grand jurors must ordinarily be eligible to vote; eligibility requires payment of a poll tax; and the validity of the poll-tax requirement is not challenged. The record shows 5,500 current Negro poll-tax payers in Dallas County in 1947, and nothing indicates that this number varied substantially from year to year. The corresponding figure for all poll-tax payers, male and female, is 83,667. These figures would indicate that as a proportional matter 6.5% of grand jurors would be Negroes, a percentage approximating the ratio of Negroes actually sitting on the 21 grand jury panels. Without more it cannot be said that Negroes had been left off grand-jury panels to such a degree as to establish a prima jade case of discrimination.
A different question is presented by petitioner’s next charge that subsequent to the Hill case the Dallas County grand-jury commissioners for 21 consecutive lists had consistently limited Negroes selected for grand-jury service to not more than one on each grand jury. The contention is that the Akins case has been interpreted in Dallas County to allow a limitation of the number of Negroes on each grand jury, provided the limitation is approximately proportional to the number of Negroes eligible for grand-jury service. Since the Hill case the judges of the trial court have been careful to instruct their jury commissioners that discrimination on grounds of race or color is forbidden. The judge did so here. If, notwithstanding this caution by the trial court judges, commissioners should limit proportionally the number of Negroes selected for grand-jury service, such limitation would violate our Constitution. Jurymen should be selected as individuals, on the basis of individual qualifications, and not as members of a race.
We have recently written why proportional representation of races on a jury is not a constitutional requisite. Succinctly stated, our reason was that the Constitution requires only a fair jury selected without regard to race. Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible. That conclusion is compelled by the United States Code, Title 18,' § 243, based on § 4 of the Civil Rights Act of 1875. While the language of the section directs attention to the right to serve as a juror, its command has long been recognized also to assure rights to an accused. Prohibiting racial disqualification of Negroes for jury service, this congressional enactment under the Fourteenth Amendment, § 5, has been consistently sustained and its violation held to deny a proper trial to a Negro accused. Proportional racial limitation is therefore forbidden. An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race.
Our holding that there was discrimination in the selection of grand jurors in this case, however, is based on another ground. In explaining the fact that no Negroes appeared on this grand-jury list, the commissioners said that they knew none available who qualified; at the same time they said they chose jurymen only from those people with whom they were personally acquainted. It may be assumed that in ordinary activities in Dallas County, acquaintanceship between the races is not on a sufficiently familiar basis to give citizens eligible for appointment as jury commissioners an opportunity to know the qualifications for grand-jury service of many members of another race. An individual’s qualifications for grand-jury service, however, are not hard to ascertain, and with no evidence to the contrary, we must assume that a large proportion of the Negroes of Dallas County met the statutory requirements for jury service. When the commissioners were appointed as judicial administrative officials, it was their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color. They did not do so here, and the result has been racial discrimination. We repeat the recent statement of Chief Justice Stone in Hill v. Texas, 316 U. S. 400, 404:
“Discrimination can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case, discrimination necessarily results where there are qualified negroes available for jury service. With the large number of colored male residents of the county who are literate, and in the absence of any countervailing testimony, there is no room for inference that there are not among them householders of good moral character, who can read and write, qualified and available for grand jury service.”
The existence of the kind of discrimination described in the Hill case does not depend upon systematic exclusion continuing over a long period and practiced by a succession of jury commissioners. Since the issue must be whether there has been discrimination in the selection of the jury that has indicted petitioner, it is enough to have direct evidence based on the statements of the jury commissioners in the very case. Discrimination may be proved in other ways than by evidence of long-continued unexplained absence of Negroes from many panels. The statements of the jury commissioners that they chose only whom they knew, and that they knew no eligible Negroes in an area where Negroes made up so large a proportion of the population, prove the intentional exclusion that is discrimination in violation of petitioner’s constitutional rights.
The judgment of the Court of Criminal Appeals of Texas is
Reversed.
Mr. Justice Douglas took no part in the consideration or decision of this case.
Mr. Justice Frankfurter,
whom
Mr. Justice Burton and Mr. Justice Minton join, concurring in the judgment.
It has been settled law since 1880 that the Civil War Amendments barred the States from discriminating because of race in the selection of juries, whether grand or petty. As a result, a conviction cannot stand which is based on an indictment found by a grand jury from which Negroes were kept because of discrimination. Neal v. Delaware, 103 U. S. 370; Pierre v. Louisiana, 306 U. S. 354. We ought not to reverse a course of decisions of long standing directed against racial discrimination in the administration of justice. But discrimination in this context means purposeful, systematic non-inclusion because of color. Hill v. Texas, 316 U. S. 400. It does not mean an absence of proportional representation of the various racial components of the relevant political unit from which a grand jury is drawn or an isolated instance of disparity among such components. Akins v. Texas, 325 U. S. 398, 403; Fay v. New York, 332 U. S. 261, 284. Assuming that the grand-jury pool fairly enough reflects the racial composition of the community, there is no basis for a claim of constitutional discrimination if without design it comes to pass that a particular grand jury has no representation of a particular race. The Civil War Amendments did not deprive the States of their power to define qualifications for grand-jury service relevant to the functions of a grand jury, nor did they turn matters that are inherently incommensurable into mere matters of arithmetic. The Constitution has not withdrawn the administration of criminal justice, of which the jury system is a part, from the States. It does command that no State purposefully make jury service turn on color.
A claim that the constitutional prohibition of discrimination was disregarded calls for ascertainment of two kinds of issues which ought not to be confused by being compendiously called “facts.” The demonstrable, outward events by which a grand jury came into being raise issues quite different from the fair inferences to be drawn from what took place in determining the constitutional question: was there a purposeful non-inclusion of Negroes because of race or a merely symbolic representation, not the operation of an honest exercise of relevant judgment or the uncontrolled caprices of chance?
This Court does not sit as a jury to weigh conflicting evidence on underlying details, as for instance what steps were taken to make up the jury list, why one person was rejected and another taken, whether names were picked blindly or chosen by judgment. This is not the place for disputation about what really happened. On that we accept the findings of the State court. But it is for this Court to define the constitutional standards by which those findings are to be judged. Thereby the duty of securing observance of these standards may fall upon this Court. The meaning of uncontrovertible facts in relation to the ultimate issue of discrimination is precisely the constitutional issue on which this Court must pass. See Watts v. Indiana, 338 U. S. 49, 50-51. Of course even as to this, as always when a State court judgment is claimed to be in disregard of the Constitution, appropriate respect should be given to the judgment of the State court. And so we are brought to this case.
If the record here showed no more than that the grand-jury commissioners had considered the Negroes with whom they were acquainted — just as they considered white persons whom they knew — and had found them to be either unqualified for grand-jury service or qualified but unavailable, and did so not designedly to exclude Negroes, the State court’s validation of the local procedure would have to prevail. We ought not to go behind such a conscientious process, however rough and ready the procedure of selection by jury commissioners. To find in such honest even if pragmatic selection of grand jurors the operation of unconstitutional standards would turn this Court into an agency for supervising the criminal procedure of the forty-eight States. Such an assumption of authority by this Court would jeopardize the practical functioning of grand juries throughout the country in view of the great variety of minority groups that compose our society.
A different situation would be presented by an unquestioned showing that jury commissioners had such a limited personal knowledge of potentially qualified Negro jurors that their purposeful limitation of choice to the negligibly few Negroes known to them would inevitably imply designed exclusion of eligible Negroes. The record here affords no basis whatever for such a finding. It indicates the contrary.
The record does disclose stark facts requiring reversal on a very different basis. If one factor is uniform in a continuing series of events that are brought to pass through human intervention, the law would have to have the blindness of indifference rather than the blindness of impartiality not to attribute the uniform factor to man’s purpose. The purpose may not be of evil intent or in conscious disregard of what is conceived to be a binding duty. Prohibited conduct may result from misconception of what duty requires. Such misconception I believe to be the real situation on the record before us.
The governing facts are briefly stated. In Hill v. Texas, supra, this Court found discrimination in the selection of grand jurors in Dallas County, Texas, by virtue of the fact that, despite a large number of Negroes qualified for grand-jury service, none had been drawn. In the course of the five and a half years between that decision and the time of the drawing of the grand jury which found the indictment now challenged, there were twenty-one grand-jury panels. On each of these twenty-one consecutive panels there was never more than one Negro. This selection was made from lists which were not the result of a drawing of lots but the personal choice of the grand-jury commissioners. The available evidence clearly indicates that no more than one Negro was chosen by the commissioners for each of the twenty-one lists. Only one Negro was placed on the list — he did not serve on the panel — for the second grand jury in Dallas County after the decision in Hill v. Texas. Again, as to the grand jury which figured in Akins v. Texas, supra, only one Negro was placed on the list, and he served as a grand juror. 325 U. S. at 405. And in Weems v. State, 148 Tex. Crim. 154, 157, 185 S. W. 2d 431, 433, it was stipulated that only one Negro, who did not serve on the panel, was on the list. In the present case it is conceded that no Negro was placed on the list. The State makes no contrary claim as to any of the other grand-jury lists though the facts regarding them are peculiarly within the State’s knowledge. In view of this background, the assumption that more than one Negro was placed on the lists is inconceivable.
To assume that the commissioners did tender to the judges lists containing more than one Negro would lead inescapably to the conclusion that the judges systematically discriminated against Negroes. This is so because it just does not happen that from lists of sixteen it is always Negroes (barring one) that judges unpurposefully reject. I cannot attribute such discrimination to the trial judges of Dallas County. I can decline to attribute such discrimination to these judges only by concluding that the judges were never given the opportunity to select more than one Negro.
The grand-jury commissioners here received instructions from the judge not to “discriminate,” and I have no doubt that they tried conscientiously to abide by them. The difficulty lies in what they conceived to be the standard for determining discrimination, as revealed by their action. The number of Negroes both qualified and available for jury service in Dallas County precluded such uniform presence of never more than one Negro on any other basis of good faith than that the commissioners were guided by the belief that one Negro on the grand jury satisfied the prohibition against discrimination in Hill v. Texas. That this was their view is compelled by their testimony at the hearing on the motion to quash the indictment.
This is of course a misconception. The prohibition of the Constitution against discrimination because of color does not require in and of itself the presence of a Negro on a jury. But neither is it satisfied by Negro representation arbitrarily limited to one. It is not a question of presence on a grand jury nor absence from it. The basis of selection cannot consciously take color into account. Such is the command of the Constitution. Once that restriction upon the State’s freedom in devising and administering its jury system is observed, the States are masters in their own household. If it is observed, they cannot be charged with discrimination because of color, no matter what the composition of a grand jury may turn out to be..
On this record I cannot escape the conclusion that the judgment below is not based on an allowable finding of facts behind which this Court cannot go. It derives from the ultimate constitutional significance of undisputed facts. These bear no other rational meaning than purposeful discrimination. It does not neutralize the discrimination that it may well have been due to a misconception by the grand-jury commissioners of the requirements of this Court’s decisions.
This compels reversal of the judgment.
Norris v. Alabama, 294 U. S. 587, 590; Pierre v. Louisiana, 306 U. S. 354, 358; Smith v. Texas, 311 U. S. 128, 130; Fay v. New York, 332 U. S. 261, 272.
Texas Code of Criminal Procedure (Vernon, 1948), Arts. 333-340.
Id., Art. 338. Under the Texas Constitution and statutes, women may not serve on Texas juries. Texas Constitution, Art. 5, § 13; Harper v. State, 90 Tex. Cr. R. 252, 234 S. W. 909.
Texas Code of Criminal Procedure (Vernon, 1948):
“Art. 339. . . . No person shall be selected or serve as a grand juror who does not possess the following qualifications:
“1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror.
“2. He must be a freeholder within the State, or a householder within the county.
“3. He must be of sound mind and good moral character.
“4. He must be able to read and write.
“5. He must not have been convicted of any felony.
“6. He must not be under indictment or other legal accusation for theft or of any felony.”
Id,., Art. 357.
Smith v. Texas, supra, p. 130. See Zimmerman v. State, 59 A. 2d 675, 676-77, affirmed under title Zimmerman v. Maryland, 336 U. S. 901; Fay v. New York, 332 U. S. 261, 266, 272; Morse, A Survey of the Grand Jury System, Part II, 10 Ore. L. Rev. 217, 226-239.
There is no suggestion in the case that any judge of the county trial courts discriminated against Negroes in his selection from the lists of the members for the grand juries.
Sixteenth Census of the United States: 1940, Population, Volume II, Part 6, p. 795.
We use the word “panel” to mean the grand jury which is the final result of the statutory procedure. See Texas Code of Criminal Procedure, Art. 360. The record does not indicate the number of Negroes who were placed on the lists of sixteen, but did not serve. All that appears in this connection is that no Negroes were placed on the list in this case.
See note 4, supra.
Texas Constitution, Art. 6, §2; Vernon’s Texas Statutes, 1948, Art. 2955; Conklin v. State, 144 Tex. Cr. R. 210, 162 S. W. 2d 416.
There is some obscurity in the record as to whether the above figure of Negro poll-tax payers refers to males only or to men and women. 154 Tex. Cr. R. -, -, -, 216 S. W. 2d 813, 816, 819. The testimony and the statistics in the briefs cause us to conclude that the figure refers to all eligible Negro voters.
Texas Almanac, 1947-1948, p. 421.
In our computations we have used statistics which include both men and women, because in many cases statistical breakdowns in terms of sex are not available. Although only men may serve on the grand juries, the use of totals including both sexes should make for only minor variations in the percentages.
Compare Norris v. Alabama, 294 U. S. 587, 591; Pierre v. Louisiana, 306 U. S. 354, 361; Smith v. Texas, 311 U. S. 128, 129; Hill v. Texas, 316 U. S. 400, 401-403.
Akins v. Texas, 325 U. S. 398, 404.
Cassell v. State, 154 Tex. Cr. R. -, 216 S. W. 2d 813.
Akins v. Texas, supra, 403.
Neal v. Delaware, 103 U. S. 370, 394; Akins v. Texas, supra, 404.
“No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000.”
“Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
See Neal v. Delaware, supra, 385, 386; Hill v. Texas, supra, 404; Fay v. New York, supra, 284.
One commissioner said: “I was not personally acquainted with any negro citizen of Dallas County that I thought was qualified to sit on the Grand Jury, at that time. I did not know a one personally that I would recommend, myself, at that time.
"... The reason that I did not submit the name of a negro in my 6 names that I submitted was because I did not know any negro citizen that I felt was qualified with reference to education and business ability to serve on this Grand Jury.”
Another said:
“We did not select a negro when I served as a Commissioner; we did disregard color, race or creed; I did not know plenty of negroes that I said would be qualified. I know a lot of negroes that are qualified lawyers, doctors, Superintendents of Schools and that sort of thing but the particular thing is that their occupation precludes their serving. You could not ask a doctor or lawyer to serve 3 months of their time, either white or colored; that limited us as to the number that we could select. I knew a lot of white and colored people that were qualified.
“I did not select a negro on this Grand Jury Panel but I tried.” This commissioner had sought a Negro High School Principal for the list.
The third said: “The reason a negro was not selected was not because we discriminated; I only appointed those that I personally knew to be qualified.
“If the name of any qualified negro citizen — been submitted at that time, who had given his permission and said that he had time to serve, I certainly would have submitted his name along with the other 15 names, if it was somebody that would have been acceptable to me.”
See Texas Code of Criminal Procedure, Arts. 339, 355.
In large centers methods of selection other than personal acquaintanceship have been found convenient. Fay v. New York, 332 U. S. 261.
Pierre v. Louisiana, 306 U. S. 354, 360.
Smith v. Texas, supra, 131-132. There was a further discussion of the duty of jury commissioners to familiarize themselves with jury eligibles in Hill v. State, 144 Tex. Cr. R. 415, 418, 157 S. W. 2d 369, 371. The commissioners’ lack of acquaintance with available Negroes was not deemed sufficient by the state court to justify reversal. We disagreed and reversed. 316 U. S. 400.
1 use the term “panel,” as does Mr. Justice Reed in his opinion, to mean the grand jury of twelve selected from the list of sixteen persons tendered to the judge by the grand-jury commissioners.
The following is a fair compilation of the testimony of the three grancl-jury commissioners on this point:
“. . . it was discussed in the Jury Room [among] we Commissioners that an effort had been made to secure a negro for the Grand Jury . . . .”
“The reason that a negro was not put on this Grand Jury Panel was not because I had not made an effort to secure one . . . .”
“I did not select a negro on this Grand Jury Panel but I tried.” "As far as I know, there was not a negro on the October, 1947, Term of Grand Jury; I have never seen them in a body. When the information came to me I tried to contact a negro . . . .”
“The reason a negro was not selected was not because we discriminated . . . .”
“If the name of any qualified negro citizen [had] been submitted at that time, who had given his permission and said that he had time to serve, I certainly would have submitted his name along with the other 15 names, if it was somebody that would have been acceptable to me.”
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_fedlaw
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
MISSISSIPPI INDUSTRIES, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Missouri Public Service Commission, Mississippi Power & Light Company, Louisiana Power & Light Company, et al., City of New Orleans, Louisiana, Mississippi Public Service Commission, State of Arkansas, Union Carbide Corporation, Occidental Chemical Corporation, Arkansas & Missouri Congressional Delegations, Louisiana Public Service Commission, Arkansas Public Service Commission, Jefferson Parish, Louisiana, Arkansas Power & Light Company, Middle South Energy, Inc., Middle South Services, Inc., and Cities of Conway and West Memphis, Arkansas, Intervenors. MISSISSIPPI PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ARKANSAS POWER & LIGHT COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. MISSISSIPPI POWER & LIGHT COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. LOUISIANA PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. OCCIDENTAL CHEMICAL CORPORATION, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. REYNOLDS METALS COMPANY, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Edwin Lloyd PITTMAN, Attorney General of the State of Mississippi, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ARKANSAS AND MISSOURI CONGRESSIONAL DELEGATIONS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ARKANSAS PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. STATE OF ARKANSAS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. MISSISSIPPI LEGAL SERVICES COALITION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. CITY OF NEW ORLEANS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. MISSOURI PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Representative Webb FRANKLIN, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. JEFFERSON PARISH, LOUISIANA, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
Nos. 85-1611, 85-1613, 85-1620, 85-1621, 85-1615 to 85-1619, 85-1623, 85-1624, 85-1626, 85-1637, 85-1640, 85-1647, 85-1712, 85-1719 and 85-1772.
United States Court of Appeals, District of Columbia Circuit.
Argued March 24, 1986.
Decided Jan. 6, 1987.
Rehearing Granted in Part April 3, 1987.
James P. Murphy, with whom Michael T. Mishkin, Washington, D.C., James V. Selna, Newport Beach, Fla., Donald T. Bliss, and David T. Beddow, Washington, D.C., were on the brief, for petitioner Arkansas Industries.
Carl D. Hobelman, Washington, D.C., with whom Jerry D. Jackson, Little Rock, Ark., M. Remy Ancarrow, Washington, D.C., and Robert J. Glasser, New York City, were on the brief, for petitioner Arkansas Power & Light Co.
J. Cathy Lichtenberg, with whom Wallace L. Duncan, James D. Pembroke, Janice L. Lower, Washington, D.C., Martin C. Rothfelder, Jefferson City, Mo., William Massey, Steve Clark, and Mary B. Stallcup, Little Rock, Ark., were on the brief, for petitioners Arkansas Public Service Com’n, et al.
Hiram C. Eastland, Jr., with whom Edwin L. Pittman, Frank Spencer, John L. Maxey, II, Jackson, Miss., and Alfred Chaplin were on the brief, for petitioners Mississippi Public Service Com’n, et al.
James K. Child, Jr., Jackson, Miss., with whom Paul H. Keck, Michael F. Healy, Douglas L. Beresford, Robert R. Nordhaus, Adam Wenner, Howard Eliot Shapiro, and Margaret A. Moore, Washington, D.C., were on the brief, for petitioners Mississippi Industries, et al.
Glen L. Ortman, with whom Clinton A. Vince and Paul E. Nordstrom, Washington, D.C., were on the brief, for petitioner City of New Orleans.
Michael R. Fontham, New Orleans, La., with whom David B. Robinson, Washington, D.C., and Paul L. Zimmering, New Orleans, La., were on the brief, for petitioner Louisiana Public Service Com’n.
Peter C. Kissel, Richard G. Morgan, Earle H. O’Donnell, and Robert R. Morrow, Washington, D.C., were on the brief for petitioners Occidential Chemical Corp., et al.
A. Karen Hill, Atty., F.E.R.C., with whom William H. Satterfield, Gen. Counsel, Jerome M. Feit, Sol., and John N. Estes, III, Atty., F.E.R.C., Washington, D.C., were on the brief, for respondent.
Richard M. Merriman, Robert S. Waters, and James K. Mitchell, Washington, D.C., were on the brief for intervenors Middle South Services, Inc., et al.
William A. Chesnutt, Harrisburg, Pa., entered an appearance for intervenor Union Carbide Corp.
Before EDWARDS and BORK, Circuit Judges, and WRIGHT, Senior Circuit Judge.
Opinion PER CURIAM.
Separate opinion by Circuit Judge BORK, concurring in part and dissenting in part.
Part of section 111(C)(2), pp. 1560-62, and the judgment insofar as it concerns those issues are vacated.
PER CURIAM:
We consider eighteen consolidated petitions for review of two orders of the Federal Energy Regulatory Commission (FERC or the Commission). In the orders under review the Commission held that the four operating companies of the Middle South Utilities (MSU) system must share the costs of MSU’s investment in nuclear energy in proportion to their relative demand for energy generated by the system as a whole. The Commission implemented this scheme by reallocating responsibility for investment costs associated with the catastrophically uneconomical Grand Gulf I nuclear plant. The parties attack both the Commission’s jurisdiction and the rationality of its decision. Although the Commission’s allocation of nuclear investment costs is subject to reasonable dispute, we do not think such criticisms warrant reversal of FERC’s orders. We therefore affirm.
I. Background
The controversy facing the court today stems from the pattern of power generation investment cost sharing practiced by Middle South Utilities and its operating companies. In order to address fully the proper allocation of the costs of nuclear power generation among those companies, we review MSU’s structure, the history of its involvement in nuclear power generation, and the record of the proceedings below.
A. The Middle South System,
1. Corporate structure. Middle South Utilities, Inc. is a registered holding company under the Public Utility Holding Company Act of 1935 (PUHCA). 15 U.S.C. § 79 et seq. (1982). It owns outright four utility operating companies: Louisiana Power & Light Co. (LP & L), New Orleans Public Service, Inc. (NOPSI), Arkansas Power & Light Co. (AP & L), and Mississippi Power & Light Co. (MP & L). See Middle South Energy, Inc., 26 FERC ¶ 63,044, 65,098 (1984). The operating companies sell electricity, both wholesale and retail, in the states of Louisiana, Arkansas, Missouri, and Mississippi.
Although each operating company has a separate board of directors, the sole stockholder, MSU, selects each director. In addition, the various companies do have common or overlapping officers and directors. The Chairman and Chief Executive Officer (CEO) of MSU is a member of the board of each operating company and the CEOs of the operating companies are members of the board of MSU. Other MSU board members are also board members of individual operating companies. Middle South Services, Inc., 30 FERC ¶ 63,030, 65,142 (Docket No. ER82-463-000) (ALJ Head).
Transactions among the various operating companies are governed by a System Agreement. Over its history, MSU has filed three successive System Agreements — in 1951, 1973, and 1982. The Commission scrutinizes the System Agreement and modifies it when necessary. See, e.g., Middle South Services, Inc., 16 FERC ¶ 61,101 (1981) (modifying the 1973 System Agreement), aff'd, Louisiana Public Service Commission v. FERC, 688 F.2d 357 (5th Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 343 (1983). Section 3.01 of the Agreement states the system’s general goal of operating as a coherent unit:
The purpose of this Agreement is to provide the contractual basis for the continued planning, construction, and operation of the electric generation * * * facilities of the Companies in such a manner as to achieve economies consistent with the highest practicable reliability of service * * *. This agreement also provides a basis for equalizing among the Companies any imbalance of cost associated with the construction, ownership and operation of such facilities as are used for the mutual benefit of all the Companies.
483-R. 7117, VII Joint Appendix (JA) 1569. In light of this language, Administrative Law Judge (ALJ) Head found that the MSU system has sought to coordinate the addition of operating capacity by each individual operating company while achieving the greatest economies of scale. As he observed:
The System Agreements * * * clearly permit and encourage, for efficiency, reliability, and other economies of scale, that the individual companies from time to time build larger facilities than are necessary to meet their own native load, to benefit all the generating companies by having lower costs and greater reliabili- ^ ^ ^
30 FERC at 65,142.
All three System Agreements have assigned the task of coordinating the planning of new generating capacity to a systemwide Operating Committee. The CEO of each operating company designates one member of the committee, as does MSU. The members representing the operating companies control 80% of the votes on the committee, apportioned according to each individual company’s share of the system’s investment in generating capacity. The representative of MSU votes the remaining 20%. Under Section 5.04 of the System Agreement, the Operating Committee can now take action on the basis of a bare majority. 483-R. 7129, VII JA 1581.
2. Investment cost sharing. As ALJ Liebman noted, the MSU system planning approach to new generating capacity inevitably results in certain operating companies having less generating capacity than do others for varying periods of time. See 26 FERC at 65,098 (Docket No. ER82-616000. If a company does not have enough capacity to meet the needs of its consumers, the deficient operating company can always draw on the excess capacity of the other companies on the system. This system also benefits those companies that have built more capacity than necessary to meet current demand. Such companies generally find willing buyers of their surplus among the other companies on the system.
Under the system planning approach, it is inevitable that an operating company will, from time to time, provide a proportionate share of the system’s investment in generating capacity that is more or less than its proportionate demand for the system’s energy. If a company’s share of the system’s generating capacity is greater than its share of the energy actually generated and distributed by the system as a whole, the company is deemed to be “long.” If the company’s share of the system’s generating capacity is less than its percentage of the system’s energy, the company is deemed “short.” 26 FERC at 65,099.
Since 1951 the MSU system has sought to iron out the inequities that would otherwise result where some companies were long while other companies were short through a system of “equalization payments.” Prior to 1973 each “short” company made a payment to the “long” companies based on a fixed dollar amount per kilowatt of capacity that the company was short. In 1973 the System Agreement was amended to provide for capacity equalization payments calculated under the “participation unit” formula, a formula that based payments on the ownership costs of the latest unit constructed by the “long” company. See id.; see also 30 FERC at 65,122-23.
Importantly, this new system did not call for equalization payments based on the relative number of dollars each company had invested in generating capacity. Instead, the relative number of kilowatts of generating capacity owned by each company formed the basis for the payments. Because kilowatts can vary in cost, the system potentially perpetuated the operating companies’ relatively unequal investment in generating capacity.
For over twenty-five years, however, the system largely avoided this potential inequity. Notwithstanding its limitations, the equalization payment approach managed to produce the effect of roughly equalizing the cost of investing in new capacity from the 1950’s through the 1970’s. During the years in which the 1951 System Agreement was in force the cost of creating such capacity was relatively uniform and relatively constant. See 616-R. 1332-33, I JA 140-41; 30 FERC at 65,168. As a consequence, the System Agreement’s allocation of equalization payments based on a constant dollar per kilowatt of short capacity served to equalize investment costs. Although in the 1970’s the cost of new units began to exceed that of older facilities by a substantial margin, the 1973 System Agreement balanced this development by basing equalization payments on the costs of the newest (and more expensive) units of the “long” companies. 26 FERC at 65,-100.
3. The shift to nuclear energy and its consequences. In the 1950’s and 1960’s the MSU system tended to add new generating units in the southern part of the system to take advantage of cheap oil and gas reserves in Louisiana. See 26 FERC at 65,100; 30 FERC at 65,143. In the late 1960’s, however, the system began a program of adding coal and nuclear generating capacity, 30 FERC at 65,144, that eventually resulted in the collapse of the investment equalization program.
AP & L was the first operating company to make such an investment in nuclear power. AP & L had historically been both a short company and one with insufficient capacity to meet the requirements of its customers. 30 FERC at 65,143. Moreover, AP & L had been losing its long-term gas contracts while Louisiana and Mississippi continued to have an adequate supply of gas and oil. 26 FERC at 65,101. In December 1974 AP & L brought on line MSU’s first nuclear plant, Arkansas Nuclear One (ANO) Unit 1.
Although ANO l’s capacity was substantially more expensive than that of non-nuclear generating units built at the time, 26 FERC at 65,100-01, the lower fuel costs of a nuclear unit made the total generation costs of ANO 1 comparable to those of other plants brought on line in the 1970’s. Thus it is fair to say that the basic system of roughly equalizing the costs and benefits derived from the system’s investment in new capacity remained intact.
The picture changed radically with the development of two new nuclear units — the Waterford 3 unit (assigned to LP & L) and Grand Gulf 1 (initially assigned to MP & L). Grand Gulf was initially projected to cost $1.2 billion for two generating units. Regulatory delays, additional construction requirements, and severe inflation ran up Grand Gulf costs to in excess of $3 billion for one unit. Similar cost over-runs marred the construction of Waterford 3. See Middle South Energy, Inc. and Middle South Services, Inc., 31 FERC ¶ 61,305, 61,654 (1985). These units produce the most expensive energy on the MSU system. Measured in dollars per kilowatt of generating capacity, the new units were five times costlier than the ANO units installed by AP & L. Most important, although these two plants have been estimated to represent over 70% of the production costs of the MSU system, they apparently will produce only 13% of the electricity used on the system. 30 FERC at 65,121.
Under these conditions, continued application of a capacity equalization scheme that only sought to equalize kilowatts could no longer come close to equalizing investment dollars. Any operating company saddled with responsibility for Waterford 3 and/or Grand Gulf would likely find itself paying far more per kilowatt of capacity than would an operating company that was free of such a burden. 26 FERC at 65,100.
It is true that MSU filed a new System Agreement in 1982 altering its previous equalization scheme. Unlike the 1973 Agreement, which had pegged equalization payments to the cost of the long company’s most recent generating addition, the 1982 Agreement provided for equalization payments based on the long company’s “intermediate” (ie., oil and gas) units. 483-R. 7137-50, VII JA 1589-96. This change reduced the burden on any company that might be both short and have substantial responsibility for the new nuclear plants. But, as discussed below, this change did not eliminate the major inequities that nuclear power introduced to the MSU system.
4. The Grand Gulf plant. The Grand Gulf project was initiated by MSU to meet the then projected demand for electricity by the system as a whole. 26 FERC at 65,101-02. By the late 1970’s, however, it became clear that projected demand would fall well short of previous expectations. Nonetheless, MSU continued to build Grand Gulf 1 on the assumption that the overall cost per kilowatt hour would be less than that of alternative energy sources. 26 FERC at 65,102.
Initially the plant had been assigned to MP & L. It soon became apparent, however, that MP & L did not have the resources to finance the construction of the plant. As a consequence, MSU made a system decision to form Middle South Energy (MSE) in 1974 as a vehicle for financing Grand Gulf. MSE acquired full title to Grand Gulf. In June of 1974 all four Middle South operating companies entered into an “Availability Agreement” under which each operating company put its credit behind Grand Gulf.
Notwithstanding this initial agreement, at the time MSE was first formed no clear plan existed to allocate responsibility for Grand Gulf’s capacity to each of the companies. Over the years various allocation plans were put forward, ultimately resulting in the Unit Power Sales Agreement (UPSA) at issue in this case.
At first it was contemplated that MSE would become a party to the System Agreement. Under this plan all of Grand Gulf would be a “participation unit” and responsibility for the plant’s capacity would shift among the operating companies to the degree they were short. 616-R. 4122-23, II JA 505.
In 1979 MSU officials, having come to the conclusion that a fixed allocation of capacity was preferable to a scheme of shifting responsibilities, recommended a plan that would have allocated a share of Grand Gulf capacity to all of the operating companies. But by early 1980 the MSU officers were moving toward a scheme absolving AP & L of all responsibility for Grand Gulf. In July of 1980 the CEOs of the MSU operating companies signed a Memorandum of Understanding, freeing AP & 1/ of all responsibility for Grand Gulf. Although this Memorandum was never submitted to the Coordinating Committee, and therefore never became final, its basic terms were set forth in a “Reallocation Agreement” executed in July 1981. 616-R. 3275,1 JA 268. Under the Reallocation Agreement AP & L assigned its entitlement to purchase Grand Gulf power to the other companies. In addition, NOPSI, LP & L, and MP & L agreed to indemnify AP & L for any obligation it might incur to MSE’s creditors. The Reallocation Agreement thus relieved AP & L of any responsibility for Grand Gulf capacity costs and provided the basis for the Unit Power Sales Agreement. 26 FERC at 65,103.
The Unit Power Sales Agreement was executed on June 10,1982. Although all of the operating companies are signatories to the UPSA, it only provides for sale of Grand Gulf capacity and energy by MSE to three of the operating companies: LP & L, MP & L, and NOPSI, but not to AP & L. 26 FERC at 65,095.
B. The Proceedings Below
In April 1982 MSU filed with the Commission the 1982 System Agreement, which set the general rules governing transactions between the operating companies, including capacity equalization payments and the rates governing the exchange of energy between the operating companies. FERC set the proceeding for hearing before AU Head. In June 1982 MSU filed the Unit Power Sales Agreement with the Commission, governing the sales of Grand Gulf capacity and energy by MSE to the four operating companies. This proceeding was set for hearing before AU Liebman. AU Liebman issued his opinion on February 3, 1984, Middle South Energy, Inc., 26 FERC 1163,044 (1984), and AU Head issued his opinion a year later, on February 4, 1985. Middle South Services, Inc., 30 FERC ¶ 63,030 (1985). Both decisions touched on the allocation of Grand Gulf Power, and FERC reviewed both decisions in an opinion issued June 13,1985. Middle South Energy, Inc. and Middle South Services, Inc., 31 FERC ¶ 61,305 (1985). It revisited the issue following petitions for rehearing in an opinion issued September 28, 1985. Middle South Energy, Inc. and Middle South Services, Inc., 32 FERC ¶ 61,425 (1985).
1. ALJ Liebman’s decision in the UPSA case (ER82-616). The principal issue in ER82-616 was whether the UPSA’s proposed allocation of Grand Gulf investment costs was reasonable and, if not, how such costs should be allocated. As a threshold matter, however, AU Liebman rejected a series of arguments suggesting that FERC did not have jurisdiction or statutory authority to amend this aspect of the UPSA.
Having found jurisdiction, AU Liebman found that the UPSA was “unduly discriminatory” under Section 206(a) of the Federal Power Act, 16 U.S.C. § 824e(a) (1982), because it failed to allocate any portion of Grand Gulf’s capacity costs to AP & L. He based this decision on his view of the MSU system as a highly integrated operation that made critical decisions — such as the decision to move into nuclear power — as a unit. Under that view AU Liebman thought it only fair that AP & L pay its share of the company’s decision to build nuclear capacity. Having rejected the UPSA’s allocation of Grand Gulf costs, AU Liebman was faced with three alternatives:
(1) Making Grand Gulf a participation unit, with floating responsibility among the short(er) companies.
(2) Allocating responsibility for Grand Gulf capacity proportionate to each operating company’s relative share of system demand, as fixed in 1982.
(3) Allocating responsibility for Grand Gulf such that each operating company bore a share of the cost of all the nuclear units on the MSU system proportionate to that company’s relative share of system demand, as fixed in 1982.
26 FERC at 65,109.
AU Liebman chose the last proposal. As the Commission noted, this approach did not merely allocate the cost of Grand Gulf. By including the total system investment in nuclear power in his formula, AU Liebman effectively reallocated the costs of all nuclear capacity on the MSU system. 31 FERC at 61,633.
AU Liebman justified his exclusive focus on nuclear capacity costs — rather than on equalizing the costs of all capacity investment or, even more sweeping, equalizing all generating costs — by claiming that the differences among non-nuclear base load generation costs were minor eompared to the cost differences among the nuclear generating facilities. 26 FERC at 65,110. He suggested that even under his proposal AP & L would still have the low- total generation costs on the system, at 65,119. He justified his decision to reallocate costs of Grand Gulf primarily by reference to the fact that the UPSA perpetuated discrimination caused by the timing of nuclear units by forcing the Louisiana and Mississippi ratepayers to pay about four times more for nuclear capacity than the Arkansas ratepayers would pay for their nuclear kilowatts. Id. at 65,107.
2. ALJ Head’s decision in the System Agreement case (ER82-483). The principal issue in the System Agreement proceeding was whether FERC should approve that Agreement as filed or whether it should equalize all or part of the production costs on the system. 30 FERC at 65,120. AU Head also considered a series of arguments militating against FERC jurisdiction over the reallocation of Grand Gulf costs and rejected them.
Having found that FERC had the authority to reallocate production costs, AU Head faced the following alternatives:
(1) Adoption of the System Agreement as filed. This would entail allocating none of the Grand Gulf costs to AP & L and only equalizing the costs of capacity between “long” and “short” companies, with equalization payments pegged to the cost of the long companies’ oil and gas investment costs.
(2) Equalization of production costs. The basic concept, presented by the Louisiana Public Service Commission, was to allocate responsibility for a share of all production costs on the MSU system proportionate to each company’s share of the system’s total load.
(3) Making Grand Gulf a participation unit. This proposal would allocate responsibility for Grand Gulf capacity to each operating company to the degree that the company in question was “short.” Under this scheme responsibility for Grand Gulf capacity would shift over time.
AU Head rejected all of these proposals. He rejected the concept of making Grand Gulf 1 a participation unit primarily because it would allow long companies (e.g., MP & L) to avoid completely the high front-end costs associated with that plant. 30 FERC at 65,166-67. He rejected the equalization proposals on the ground that overall cost equalization would be inconsistent with the general “pattern of autonomy * * * particularly as to * * * specific plant site locations, fuel and financing” that he found characterized the operating companies in the MSU system. Id. at 65,168.
AU Head found support for his finding of a “pattern of autonomy” in two circumstances. First, he stressed that the historic practice in the MSU system was to equalize only excess capacity. Id. at 65,167. Second, he insisted that “generation additions in almost every instance (except for Grand Gulf) were made primarily to satisfy individual company needs.” Id. at 65,168.
AU Head, however, found that Grand Gulf constituted an “anomaly” in the MSU system:
Grand Gulf from its inception was planned, presented to the licensing authorities and constructed as a system plant not only to serve the needs of MP & L but to serve the needs of all the operating companies on the system.
30 FERC at 65,170.
He therefore deemed it appropriate to reject the System Agreement as filed and to allocate the costs of the Grand Gulf investment among all of the operating companies. Unlike AU Liebman, however, he held that this allocation should fluctuate from year to year to track each company’s relative demand for the system’s energy. 30 FERC at 65,172.
3. FERC’s initial decision. In Order No. 234 the Commission summarily affirmed both AUs on the threshold issue of its own jurisdiction to amend the Sales Agreement and the System Agreement. 31 FERC at 61,643-46. On the merits, the Commission affirmed both AUs’ findings that MSU constituted an “integrated electric system.” 31 FERC at 61,645. The Commission, however, specifically rejected AU Head’s finding that the MSU system displayed a “pattern of autonomy” with regard to the planning and construction of generating units. Id.
The Commission conceded that MSU’s system of overlapping officers and directors and the representation of the operating companies on the System Operating Committee gave the operating companies substantial influence in the development of the system’s plans. Id. at 61,646. FERC further observed that the individual companies used their influence to seek the addition of generating units that met their particular needs, and that Section 4.01 of the System Agreement made each operating company responsible for financing the ownership or purchase of the generating capacity necessary to service its customers. Id. at 61,649. The Commission nonetheless concluded that “major critical decisions, including decisions to build new generating units, are made by the Operating Committee for the benefit of the system as a whole.” Id. at 61,646. See also id. at 61,650.
The Commission buttressed its conclusion with the following evidentiary support: (1) Section 4.01 of the 1982 System Agreement provides that the Operating Committee shall “determine” the system generation addition plans; (2) at least five witnesses testified that new units were added to address the needs of the system as a whole, id. at 61,646-48; and (3) the Operating Committee minutes over a twenty-year period revealed that the Committee had the responsibility and the authority to make the “critical decisions” concerning the addition of generating capacity. Id. at 61,648-49.
The Commission’s review of the Operating Committee minutes revealed that the Operating Committee did not merely rubber-stamp the requests of the individual operating companies concerning the addition of generating capacity. Id. at 61,649. The Commission found that the Operating Committee consistently based its generation plans on the needs of the system as a whole. Id. at 61,649-50. It found that the Operating Committee had authority over the general timing, location, and size of plant additions, while the individual operating companies retained authority to fill in the details of such fundamental decisions. Id. Thus FERC stated that there was no evidence in the record that an operating company had ever built a new plant without a recommendation from the Operating Committee or that one had ever refused to carry out such a recommendation. Id. at 61,651.
In light of this finding, FERC rejected AU Head’s contention that Grand Gulf was an “anomaly.” Instead it agreed with AU Liebman that Grand Gulf, like every other generating station, was built to serve the needs of the system as a whole and to attain the system-wide goal of diversifying MSU’s fuel mix. Id. at 61,653. MSE was deemed a mere financing shell that the Commission hypothesized would have been made available to any other operating company that suffered the financial difficulties encountered by MP & L. Id. at 61,654.
The Commission viewed the decision to move into nuclear power as a system-wide decision calculated to meet system-wide needs. It found that MSU’s nuclear project had run afoul of unforeseen economic difficulties that had disrupted the system’s historic rough equalization of generation costs. FERC therefore adopted AU Liebman’s scheme of allocating Grand Gulf costs so that each operating company would contribute proportionately to the system’s investment in nuclear capacity. Id. at 61,655.
4. FERC’s opinion on rehearing. In Opinion No. 234-A FERC clarified its position on the various jurisdictional arguments it had addressed in its initial decision. 32 FERC at 61,943-52. The Commission also addressed — and rejected — the argument raised by various Arkansas parties that FERC lacked jurisdiction as there was no interstate sale of power. The Commission suggested that, whatever the merits of such an argument where a “monolithic” system is concerned, there was no question but that the transfer of power among the MSU operating companies constitutes a “sale for resale.” Id. at 61,957.
Indeed, a major portion of the Commission’s opinion on rehearing was dedicated to clarifying the Commission’s essential finding concerning the “integrated” character of the MSU system. The Commission rejected any attempt to mischaracterize its decision as based on a view that MSU is a “monolith.” Id. at 61,952. FERC simply insisted that, whatever the powers of the individual operating companies, the MSU Operating Committee makes the “major critical decisions on the System, primarily for the System as a whole.” Id. at 61,953 (emphasis in original). The Commission emphasized that its opinion hinged on “a variety of factors including the manner in which decisions are made by the commonly owned affiliates, and for whose primary benefit those decisions are made.” Id. at 61,956.
Turning to the merits, the Commission addressed three challenges to the rationality of its allocation of Grand Gulf costs. It disputed the contention of the Arkansas parties that the allocation violated the spirit and practice of the MSU system, the System Agreement, and the intent of the parties to that Agreement. FERC responded that the clear intent of the System Agreement was to correct major cost imbalances while moving toward a mixed fuel base including nuclear and coal-fired facilities. The Commission insisted that it need not measure the rationality of its allocation from the vantage point of the parties at the time the UPSA was first negotiated. Id. at 61,957-59.
The Commission also addressed the argument of MP & L that the Commission’s order had only exacerbated the discrimination it would have suffered under the original UPSA scheme. MP & L noted that under the UPSA it would have been responsible for 31.63% of Grand Gulf, but under the Commission’s scheme it would be responsible for a full 33%. 31 FERC at 61,-959. Under the new scheme Mississippi would receive only 9.5% of the system’s nuclear capacity while paying for 15% of the system’s nuclear investment. 32 FERC at 61,964 n. 26.
The Commission responded by asserting that the mere fact that FERC’s order increased MP & L’s burden did not make it more discriminatory., It is completely rational, argued the Commission, that a smaller burden can be discriminatory and, with a change in the relative standing of the parties, a larger burden can be fair. The original allocation was discriminatory, in the Commission’s view, because AP & L had failed to share the burden of Grand Gulf. Although the Commission’s order would increase MP & L’s allocation somewhat, it would spread the overall burden of Grand Gulf more equitably by making AP & L carry a portion of the burden.
The Commission suggested that its refusal to reallocate the capacity of all nuclear units (as well as their costs) was justified by the MSU system’s historic aversion to equalizing all costs per kilowatt. Id. at 61,959. It stressed the same point in responding to the arguments of various Louisiana parties that it should have adopted full cost equalization. Id. at 61,961. Thus the Commission depicted its opinion as an attempt to balance
the need to provide an equitable sharing of the investment costs of units that have (or could have) become unforeseeably high due to the unique problems associated with nuclear construction, and the need to recognize the efforts of individual companies on the System and allow them to retain the benefits of units they own to the fullest extent possible.
Id.
Dissatisfied with this rationale, petitioners sought review in this court.
II. Jurisdiction
The petitioners from Arkansas, Missouri and Mississippi raise certain threshold challenges to the Commission’s decision. They contend that FERC lacks jurisdiction to modify the allocation of the capacity costs of Grand Gulf embodied in the Unit Power Sales Agreement (“UPSA”). We disagree, and hold that the Federal Power Act (“FPA” or “the Act”) provides FERC with authority to issue the orders in question. Initially, we will set forth the affirmative basis of FERC’s jurisdiction; thereafter, we will address (and reject) each individual counterargument raised by petitioners.
A. The Jurisdiction of the Commission
Section 201 of the Act contains the Commission’s basic jurisdictional grant. It provides that “[t]he provisions of this subchapter shall apply to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce” and that “[t]he Commission shall have jurisdiction over all facilities for such transmission or sale____” This section also defines “public utility” as “any person who owns or operates facilities subject to the jurisdiction of the Commission under this subchapter.” The facts here reveal that MSE sells Grand Gulfs energy to the affiliated operating companies of the MSU system at wholesale in interstate commerce. Thus, under section 201 of the Act, MSE is a “public utility” and FERC retains jurisdiction over its sales and facilities.
Sections 205 and 206 of the Act set forth the Commission’s remedial authority. Section 205(a) establishes a threshold requirement that all “rates and charges” made by a public utility, and “all rules and regulations affecting or pertaining to such rates and charges,” must be “just and reasonable,” or they will be deemed “unlawful.” Most significantly for our purposes, section 206 provides that when the Commission, after a hearing, determines that
any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_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".
UNITED STATES of America v. Flemming ANDERSON, Appellant. UNITED STATES of America v. William G. HALE, Appellant.
Nos. 72-1848 and 72-2066.
United States Court of Appeals, District of Columbia Circuit.
Argued April 17, 1973.
Decided May 21, 1974.
Rehearing En Banc Denied Aug. 1,1974.
Louis J. Briskman, Pittsburgh, Pa., with whom Sherman L. Cohn, Washington, D. C., Larry J. Ritchie, Washington, D. C., and Alan S. Gover, Houston, Tex., (all appointed by this court) were on the brief, for appellants.
David G. Larimer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and John R. Dugan, Asst. U. S. Attys., were on the brief, for appellee.
Before BAZELON, Chief Judge, WISDOM, United States Circuit Judge for the Fifth Circuit, and WILKEY, Circuit Judge.
Entered appearances as student counsel pursuant to Rule 20 of the General Rules of this court.
Sitting by designation pursuant to Title 28 U.S.C. § 291(a).
BAZELON, Chief Judge:
In a joint trial appellants were convicted by. a jury of robbery. Anderson received a two to eight year sentence ; imposition of Hale’s sentence was suspended, and he was placed on probation for three years. Hale seeks reversal on the ground that the prosecutor impermissibly sought to elicit his reason for not asserting his alibi to the police when arrested. Anderson seeks reversal on the ground that he was prejudiced by several comments in Hale’s closing argument. We reverse Hale’s conviction, and affirm Anderson’s.
I
The government’s case rested largely on the testimony of Lonnie Arrington, the complaining witness. Arrington testified that on June 1, 1971, he was on his way to purchase a pair of shoes when he stopped to chat with Hale, whom he had seen in the neighborhood, but did not know by name. Hale then followed him into the shoe store. Upon leaving, Arrington was accosted and robbed by a group of men. He immediately reported the robbery to the police. At first he claimed that $65 had been stolen, but later, after checking with his wife, he changed the figure to $96. While waiting for the police to escort him through the neighborhood in search of his attackers, Arrington noticed two men, and shouted, “there go [sic] a guy that was in the robbery.” When the police ran toward the two men, they fled. Upon their capture, Arrington identified Hale as one of the robbers. Several months later, Arrington picked out Anderson from a group of photos shown to him by the police, and then identified him at a lineup.
The arresting officer testified that Hale had $123 in his pocket and $35 in his wallet when arrested. He also claimed that Arrington had stated, before Hale had been arrested, “that he believed one of [the robbers] was a man by the name of Billy Hale.” This testimony directly contradicted Arrington’s earlier testimony to the effect that he did not “tell the police [Hale’s name], because I didn’t know if it was [him] or not.”
Hale took the stand in his own defense and testified that he had encountered Arrington on the day in question. He asserted, however, that after separating from Arrington he was approached by three men who asked if Arrington had any money, and that he replied he “didn’t know.” Hale claimed that he then went to the Narcotics Treatment Center where he remained during the time of the alleged robbery. He left the Center with a friend who subsequently purchased narcotics. Shortly after the purchase, the two men were approached by the police, and Hale fled because he feared another drug conviction.
Hale also testified that his estranged wife had received her welfare check on the day in question, and that she had given him about $150 so that he could purchase some money orders for her, as he had done in the past. His wife corroborated this testimony.
Anderson presented no evidence.
II — HALE’S CLAIM
Appellant Hale argues that the trial court committed reversible error in failing to grant his motion for a mistrial after the prosecutor, on cross-examination, elicited from Hale an admission that he had not explained to the police the presence of $158 found on his person at the time of arrest. We find that: (A) the prosecutor’s question was constitutionally impermissible; and (B) the court’s failure to declare a mistrial was prejudicial error.
The record indicates that after arrest appellant was taken to the police station and informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), including his “right to remain silent.” He was then searched and found in possession of $158. A police interrogator thereupon asked “[w]here did you get the money ?” Hale made no response.
At trial, in an effort to impeach Hale’s testimony that he was carrying a large sum of money because his wife had received her welfare check and had asked him to purchase some money orders for her, the prosecutor led Hale to admit that he had not offered that explanation to the police at the time of his arrest:
Prosecutor: Did you in any way indicate [to the police] where the money came from?
Hale: No, I didn’t.
Prosecutor: Why not?
Hale: I didn’t feel it was necessary at the time.
In Miranda, after holding that a defendant had a right to be advised that he could remain silent in the face of police interrogation, the Supreme Court went on to note:
In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed at his privilege in the face of accusation. 384 U.S. at 468 n. 37 (emphasis supplied).
Relying on this dictum, several Circuits, including our own, have held that cross-examination of the sort in question in this case was improper.
Recently, however, one Circuit has held, and another has implied, that Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), undercuts the portion of Miranda quoted above, and permits cross-examination regarding a defendant’s refusal to offer an alibi or explanation to his police interrogators.
In Harris the Court held that a defendant could be impeached by “prior inconsistent utterances” made at the time of his arrest even when they were made before the defendant was adequately apprised of his rights. The Fifth Circuit extended the Harris rationale to approve “the right of the prosecution to show [a defendant’s] prior inconsistent act of remaining silent The Tenth Circuit, on the other hand, has disagreed with the Fifth Circuit observing that:
silence at the time of arrest is not an inconsistent or contradictory statement. Silence at the time of arrest is simply the exercise of a constitutional right that all persons must enjoy without qualification.
We agree with the Tenth Circuit.
The premise underlying Harris is that if a defendant voluntarily gives statements to the police that contradict his trial testimony those statements are admissible because they are obviously relevant for assessing credibility. When, however, a defendant is informed that he has a right to remain silent, and then exercises that right, there is nothing inconsistent if he subsequently offers exculpatory testimony at trial. Virtually the same issue was considered in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). There, petitioner refused to answer several questions put to him before the grand jury “on the ground that the answers would tend to incriminate him and that the Fifth Amendment therefore entitled him not to answer.” At trial these same questions were answered “in a way consistent with innocence,” and “the Government was then allowed [for impeachment purposes] ... to bring out in cross-examination that petitioner had pleaded his privilege before the grand jury as to these very questions.” The Court found that the exercise of the privilege was “wholly consistent with innocence,” and therefore concluded, without dissent, that there was “no inconsistency” to support the cross-examination. The Court relied on three factors: (a) petitioner repeatedly maintained his innocence before the grand jury; (6) a grand jury inquiry, unlike a trial, is in the nature of a secret proceeding, and “[i]nnocent men are more likely to plead the privilege in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings . . . ”; (c) “most important,” at the time petitioner appeared before the grand jury he was “already considered a potential defendant” and therefore “it was quite natural for him to fear that he was being asked questions for the very purpose of providing evidence against himself.”
These reasons have even greater validity in the present case: (a) while the record does not disclose whether Hale insisted upon his innocence at the time of arrest, it clearly reveals that he steadfastly maintained his innocence throughout the proceedings; (6) police interrogation may be viewed as more “secret” than a grand jury proceeding which is conducted on the record and in the presence of the prosecutor and grand jurors. Miranda’s rules were aimed precisely at dangers presented by the secret nature of police interrogation; (c) Hale was more clearly a “potential defendant” then Grünewald since he had been identified by the victim as one of the robbers, and had been arrested by the police on suspicion of the instant offense.
In sum, application of the principles enunciated in Grünewald compels a finding that, as a matter of law, there was nothing inconsistent between Hale’s silence in interrogation and his alibi at trial. Thus, the basic premise required for triggering the Harris rationale is absent.
Even if it could be said that appellant’s silence at the police station was inconsistent with his testimony at trial Harris would nevertheless be inapplicable in the present circumstances. In Harris the accused did not exerciee his constitutional right to remain silent, but rather spoke, albeit without first being advised of his rights. In the instant case, on the other hand, "the accused explicitly availed himself of his right to remain silent. The Supreme Court has proscribed comment by a court or prosecutor on the fact that a defendant did not testify at trial on the ground that such comment “cuts down on the privilege by making its assertion costly.” Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). The Court, relying upon this analysis, then ruled in Miranda that it is “impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.” The rationale for this rule was articulated by Justice Black in his Grünewald concurrence:
[There are] no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them. It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution. 353 U.S. at 425-426.
Nothing in Harris undercuts this fundamental constitutional principle since Harris did not "involve assertion of the constitutional right.
Our conclusion that the prosecutor’s question was improper is buttressed by the fact it would be grossly unfair to advise an accused simply that he had “a right to remain silent,” and then use his silence against him at trial without at the very least having also informed him that if he chooses to exercise his right he may subsequently be impeached by that. fact. The Sixth Circuit noted almost fifty years ago that if an accused’s silence is to be used against him he “should be told, ‘If you say anything, it will be used against you; if you do not say anything, that will be used against you.’ ” The Supreme Court embraced these principles in Johnson v. United States, 818 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943), where a defendant who testified was allowed to assert his privilege against self-incrimination as to some questions without having been told that the prosecutor would be permitted to comment upon this assertion. The Court ruled that even if it was error to allow petitioner to invoke his privilege, it was nonetheless improper to permit prosecutorial comment because the defendant was thereby “deprive [d] . . . of an intelligent choice between claiming or waiving his privilege.”
B.
The government argues that the error was harmless since the trial court interrupted the prosecutor and informed the jury that Hale “was not required to indicate where the money came from You may disregard it, ladies and gentlemen.” To avoid reversal, however, the error, being of constitutional magnitude, must be harmless beyond a reasonable doubt.
The government’s case against Hale rests on three limbs: (I) the testimony of the complaining witness; (2) appellant’s flight at the time of arrest; and (3) appellant’s possession of $158.
(1) The testimony of the complaining witness was confused and contradictory.
The trial court characterized it as follows:
[O]ne view . . . with respect to this complainant might be that he has been contradicted to such a point that he wouldn’t be believed. Another perfectly fair view ... is that he is an entirely sincere witness who has a limited intellectual ability, [and] who was in part confused and misled in some of his answers. . .
(2) With respect to appellant’s flight upon apprehension, he explained that his companion had purchased heroin, and, since he had a prior narcotics conviction, he was afraid. He claimed that his former narcotics conviction arose in the same circumstances; that is, when he was not himself in possession of drugs.
(3) In the face of the weak testimony by the complaining witness, and the limited probity of the evidence on flight, evidence of the large sum of money found on appellant played a central part in the government’s case. Appellant attacked this evidence in two ways: first, by showing that the sum of money found on him was much greater than the amount allegedly stolen; and second, by offering an alibi, corroborated by his wife, explaining his possession of the large sum. In this context the improper question by the prosecutor leading to Hale’s admission that he did not offer his alibi to the police was calculated to break a critical point in the defense since it was apparently intended to indicate that the alibi had been fabricated sometime between arrest and trial.
In Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961), petitioner, who had been convicted three times — his first two convictions having been reversed by this court — declined to testify at the first two trials, but took the stand at the third “in an apparent effort to bolster [his] contention of insanity [the sole issue in the case].” On cross-examination, after the defendant admitted that he had been “tried on two other occasions,” the prosecutor asked: “This is the first time you have gone on the stand, isn’t it ?” The Court found the question improper and concluded that the error was not harmless. Speaking of a potential cautionary instruction to the jury, such as the one given in this case, the Court said:
[T]he danger of the situation would have been increased by a cautionary instruction in that such an instruction would have again brought the jury’s attention to petitioner’s prior failure to testify. 366 U.S. at 10.
Thus, the error in the present case, when considered in light of the evidence against appellant, cannot be deemed harmless beyond a reasonable doubt.
Ill — ANDERSON’S CLAIM
Appellant Anderson contends that his constitutional right to remain silent was abridged by Hale’s closing argument to the jury:
All they can do — all people can do is come in and tell you exactly what they did that day. . . . That is all they are required to do. They are not even required to do that, ladies and gentlemen.
And, of course, Mr. Hale took the stand and did just that.
Anderson maintains that this statement urged the jury to draw a negative inference from Anderson’s failure to testify. We have studied Hale’s closing argument, and find that this statement, by itself, did not “invite an inference of [Anderson’s] guilt.” United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317, 1335-1336 (1971) (Bazelon, C. J„ dissenting). Indeed, shortly after completion of Hale’s closing argument, the court instructed the jury that it “must not draw any inference of guilt against the defendant because he did not testify.” In these circumstances, we find no error warranting reversal of Anderson’s conviction.
So ordered.
. Both appellants argue that the trial court’s refusal to grant a motion for judgment of acquittal was erroneous since the testimony of the complaining witness was “inherently incredible.” We find sufficient evidence to sustain the verdicts. The question of credibility was for the jury. See, e. g., Bush v. United States, 126 U.S.App.D.C. 174, 375 F.2d 602 (1967).
. Arrington also stated that there was a witness to the robbery, who was never identified, who had told him that one of the robbers was named “Billy Hale or Bobby Hale.” Although he initially testified that he did not identify Hale by name to the police, his subsequent testimony is confused. Counsel for Hale asked: “So you neglected to mention to the police that one of the individuals had given you the name of one of the robbers, is that right?” And Arrington answered, “I told them.” The record does not reveal what it is that Arrington told the police.
. An administrator from the Center testified that his records indicated that Hale had visited the Center on the day in question, but that they did not reveal the time of the visit.
. Hale claimed that his previous conviction resulted from being arrested in the presence of a friend who was in possession of narcotics.
. The owner of a local liquor store testified that he knew Hale, and that Hale had purchased money orders from him on several occasions.
. Tr. at 259.
. Tr. at 262.
. Tr. at 259.
. See also Schmerber v. California, 384 U.S. 757, 765-766, 86 S.Ct. 1826, 16 L.Ed.2d 908 n. 9 (1966).
. See, e. g., Fowle v. United States, 410 F.2d 48 (9th Cir. 1969); United States v. Brinson, 411 F.2d 1057 (6th Cir. 1969); United States v. Semensohn, 421 F.2d 1206 (2nd Cir. 1970). See also Fagundes v. United States, 340 F.2d 673 (1st Cir. 1965). But see Sharp v. United States, 410 F.2d 969 (5th Cir. 1969). The Sharp majority inexplicably omits reference to the portion of Miranda at issue despite forceful reliance on it by Chief Judge Brown in dissent. 410 F.2d at 972.
. Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586 (1968).
. Our dissenting colleague argues that the Miranda dictum is inapplicable to the facts of this case. The record, however, clearly indicates otherwise. Appellant was under police interrogation, the sort of “accusation” to which Miranda referred. See 384 U.S. at 444 & 468 n. 37. And, when he was asked “[w]here did you get the money?” he stood "mute.” This fact was then “use[dY’ against him “at trial." As the eases cited in note 10 supra demonstrate, the Miranda dictum applies precisely to these facts. Nor would it matter, despite the suggestion by the dissent, that Hale answered some questions before remaining silent: “[Tjhere is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent .” Miranda supra, 384 U.S. at 475-476. In fact, the record does not reveal whether appellant answered any questions or made any statements.
. United States v. Ramirez, 441 F.2d 950 (5th Cir. 1971).
. In United States ex rel. Burt v. New Jersey, 475 F.2d 234 (3rd Cir. 1973), a defendant was arrested for a crime other than the homicide at issue in the appeal before the Third Circuit. At trial he explained that the homicide was accidental. The court held that defendant was properly impeached by his silence at the police station because he had not been accused of committing any homicide, and therefore should have notified the police if he knew about an accidental homicide. Two judges issued a concurring opinion seemingly on the ground that Harris allows impeachment by prior silence at the police station.
In a subsequent case a different panel of the same Circuit held that it was improper to impeach a defendant by pointing out that he invoked another of his Miranda rights, namely, the right to an attorney. United States ex rel. Macon v. Yeager, 476 F.2d 613 (3rd Cir. 1973). In the face of these two decisions a district court in the Third Circuit has recently held that a defendant can, be impeached by his prior silence only when police interrogation does not concern the crime for which the defendant is subsequently indicted. The district court then concluded that cross-examination of the sort at issue in this case was improper notwithstanding Harris. United States v. Holland, 360 F.Supp. 908 (E.D.Pa.1973).
. United States v. Ramirez, 441 F.2d 950, 954 (5th Cir. 1971) (emphasis supplied).
. Johnson v. Patterson, 475 F.2d 1066, 1068 (10th Cir. 1973). With respect to Ramirez supra, the Tenth Circuit said, “[t]he premise of Ramirez is that silence at the time of arrest is an act inconsistent with the testimony given at trial. . . . We simply deny the validity of the premise.” 476 F.2d at 1068 n. 3. See also Deats v. Rodriguez, 477 F.2d 1023 (10th Cir. 1973).
. 353 U.S. at 416. In the instant case Hale did not decline to answer on the ground that his answers might tend to incriminate him, but simply remained silent in the face of the police interrogator’s instruction that he had “a right to remain silent.”
. 353 U.S. at 417.
. 353 U.S. at 421, 422. See also Stewart v. United States, 366 U.S. 1, 7 n. 14, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961).
. 353 U.S. at 422-423.
. 353 U.S. at 423.
. See Miranda supra, 384 U.S. at 445 (“The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado.”).
. The Grünewald Court acknowledged that “the question whether a prior statement is sufficiently inconsistent to be allowed to go 'to the jury on the question of credibility is usually within the discretion of the trial court. But where such evidentiary matter has grave constitutional overtones, as it does here, we feel justified in exercising this Court’s supervisory control . . . ” 353 U.S. at 423-424.
. See Fowle v. United States, 410 F.2d 48, 51 (9th Cir. 1969) (“Surely . . . [petitioner’s] silence was no more contradictory of his later testimony than was the silence of [the petitioner m Grünewald].”) ; Johnson v. Patterson, 475 F.2d 1066 (10th Cir. 1973).
. 384 U.S. at 468 n. 37. See Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586, 587 (1968) (“The distance between [Grif/m] and the prosecutor’s comments here ... is infinitesimal.”); Fowle v. United States, 410 F.2d 48, 51-55 (9th Cir. 1969); Johnson v. Patterson, 475 F.2d 1066, 1067-1068 (10th Cir. 1973). See generally Spevak v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); United States ex rel. Macon v. Yeager, 476 F.2d 613, 616 (3rd Cir. 1973) (“Griffin holds broadly that, at least in the criminal context, the relevant question is whether the particular defendant has been harmed by the state’s use of the fact that he engaged in constitutionally protected conduct . . .”) (emphasis in original).
. The dissent relies heavily on Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), where the Court held that a defendant who testifies at his second trial, but who did not testify at the first trial, may be impeached by his prior silence when his purpose in testifying is to deny some statements attributed to him by a witness who has offered the same testimony at both trials. In Grünewald supra, the Court explicitly declined to reaffirm Raffel. 353 U.S. at 421. Four Justices concurring .in Grünewald indicated that Raffel should be overruled. The rationale of that concurrence provided the framework for the Court’s subsequent decision in Griffin. Accordingly, there is a serious question whether Raffel has any remaining vitality. See Note, Use of Silence, 33 Md.L.Rev. 363, 367 n. 21 (1973). See also Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961) (cannot attack witness’s demeanor by introducing fact that he failed to testify at former trials).
In any event, Raffel is clearly distinguishable from the present circumstances because there the petitioner was impeached hy his refusal to testify at a former trial, whereas in the instant case appellant declined to speak with police interrogators. There are good reasons why a • defendant would refuse to speak to the police in a proceeding that is off the record, and at a time when he is without the advice of counsel, and then decide to testify at trial. See Grünewald supra.
. McCarthy v. United States, 25 F.2d 298 (6th Cir. 1928). See also Johnson v. Patterson, 475 F.2d 1066 (10th Cir. 1973); United States v. Brinson, 411 F.2d 1057 (6th Cir. 1969); Fowle v. United States, 410 F.2d 48 (9th Cir. 1969).
. 318 U.S. at 198. The Court noted :
Elementary fairness requires that an accused not be misled on th [is] score. If advised by the court that his claim of privilege though granted would be used against him, he well might never claim it. Id. at 197.
This rationale is equally compelling in the face of police interrogation and advice.
. Tr. at 259.
. See Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586, 588 n. 8 (1968).
. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
Tr. at 187.
. See generally Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110, 1114 & n. 29 (1969); Miller v. United States, 116 U.S.App.D.C. 45, 320 F.2d 767 (1963).
. Stewart v. United States, 94 U.S.App.D.C. 293, 214 F.2d 879 (1954); Stewart v. United States, 101 U.S.App.D.C. 51, 247 F.2d 42 (1957).
. 366 U.S. at 3.
. 366 U.S. at 4.
. See, e. g., United States ex rel. Macon v. Yeager, 476 F.2d 613, 616-617 (3rd Cir. 1973); Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586, 588 (1968). Compare Leake v. Cox, 432 F.2d 982 (4th Cir. 1970) (“overwhelming evidence of guilt”); United States v. Wick, 416 F.2d 61 (7th Cir. 1969) (“overwhelming evidence against the defendant”).
. Tr. at 294.
. Anderson argues that this statement was particularly prejudicial because other parts of Hale’s closing argument attempted to place the blame on Anderson while exonerating Hale. Anderson cites several statements in Hale’s argument indicating that Arringtonhad testified before the grand jury that Hale had committed certain inculpatory acts, whereas at trial he testified that Anderson, did these acts. The record, however, does not support Anderson’s claim. When placed in context, it is clear that the statements in Hale’s closing argument were aimed solely at convincing the jury that Arrington was wholly incredible since he continually changed his story. Thus, Anderson was not harmed. See DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962); United States v. Barney, 371 F.2d 166 (7th Cir. 1966). Compare United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317 (1971), with id. at 1335 (Bazelon, C. J., dissenting).
. In Hines, counsel for one co-defendant argued “you and I, if we were innocent, we would take the stand to try to exonerate ourselves.” 455 F.2d at 1334.
. Tr. at 308.
Question: 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_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Ad Hoc Committee on Liquid Dielectrics of the Electronic Industries Association, et al., Joy Manufacturing Co., Edison Electric Institute, et al., Aluminum Company of America, et al., Intervenors.
No. 79-1580.
United States Court of Appeals, District of Columbia Circuit.
Feb. 5, 1982.
See, also, D.C.Cir., 636 F.2d 1267.
Jacqueline M. Warren, David J. Lennett, Washington, D. C., Bingham Kennedy, McLean, Va., and Barry J. Trilling, Washington, D. C., were on the brief for petitioner.
Ellen Siegler, Atty., U. S. Environmental Protection Agency, and Donald W. Stever, Atty., U. S. Dept. of Justice, Washington, D. C., were on the brief for respondent.
Steven S. Rosenthal, Washington, D. C., was on the brief for intervenors, AC Paper & Film Capacitor Section of the Electronic Industries Ass’n and National Electrical Mfgrs. Ass’n.
Before ROBINSON, Chief Judge, EDWARDS, Circuit Judge, and HOWARD F. CORCORAN, United States Senior District Judge.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
For the District of Columbia, sitting by designation pursuant to 28 U.S.C. § 294(d).
TABLE OF CONTENTS
Page
I. The Chronology op Events Pertaining to EDF’s Motion for Attorneys’ Fees............................................. 46
II. The Applicable Statutory Standard for an Award of Attorneys’ Fees Under TSCA........................ —.............. 47
III. The EDF Claims for Attorneys’ Fees......................... 50
A. Time Claimed For Work On The Case-In-Chief________________ 50
B. The Decision in Copeland v. Marshall________________________ 51
C. EPA’s Opposition To The Claim For Attorneys’ Fees----------- 52
IV. An Evaluation and Judgment Concerning the “Hours Reasonably Expended,” the “Reasonable Hourly Rate,” and “Adjustments to the ‘Lodestar”’............... 53
A. Documentation_________________________________________ 54
B. Hours Reasonably Expended_______________________________ 55
1. EPA’s Request To Reduce Hours In Connection With Work Performed On Issues Upon Which EDF Did Not Prevail_____ 55
2. EPA’s Request To Reduce Hours In Connection With Work Performed On Issues Raised By Industry Intervenors_______ 55
3. EPA’s Request To Reduce Hours In Connection With Work Performed During Post-Decision Negotiations_____________ 56
C. The Reasonable Hourly Rates______________________________ 58
D. Calculation Of The “Lodestar” Fee_________________________ 59
E. Adjustments To The “Lodestar"____________________________ 59
V. The Award of Attorneys’ Fees on the Case-in-Chief........... 61
VI. Timeliness of EDF’s Request for Attorneys’ Fees.............. 61
Page
VII. The Attorneys’ Fee Claim Pertaining to the Supplemental Fee Application of EDF for the Services of Trilling & Kennedy_____ 61
A. EDF Entitlement To An Award Oí Attorney’ Fees For Time Spent In Preparing The Application For Fees_________________ 62
B. Documentation_________________________________________ 63
C. Hours Reasonably Expended_______________________________ 63
D. Reasonable Hourly Rates_________________________________ 63
E. Adjustments To The “Lodestar”____________________________ 63
VIII. The Award of Attorneys’ Fees for the Work Done by Trilling & Kennedy__________________________________________________ 04
IX. Conclusion _______________________________________________ 04
HARRY T. EDWARDS, Circuit Judge:
On June 7, 1979, the Environmental Defense Fund (EDF) petitioned for review of regulations, issued by the Environmental Protection Agency (EPA), implementing Section 6(e) of the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-2629 (1976). Section 6(e) of TSCA provides broad rules governing the disposal, marking, manufacture, processing, distribution, and use of a class of chemicals called polychlorinated biphenyls (PCBs). EDF sought review of three aspects of the EPA regulations. First, it challenged the determination by EPA that certain commercial uses of PCBs are “totally enclosed,” a designation that exempts those uses from regulation under the Act. Second, it claimed that the EPA acted contrary to law when it limited the applicability of the regulations to materials containing concentrations of PCBs greater than 50 parts per million (ppm). Third, EDF challenged the decision by EPA to authorize the continued use of 11 non-totally enclosed uses of PCBs.
The oral argument in this case was held on June 6, 1980, and an opinion for the court was issued on October 30, 1980, in which it was held that:
(1) no substantial evidence supported the administrative determination by EPA to classify certain polychlorinated biphenyl uses as “totally enclosed” and therefore exempt;
(2) no substantial evidence supported the administrative decision by EPA to exclude from regulation all materials containing concentrations of PCBs below 50 ppm; but
(3) substantial evidence supported the administrative determination by EPA to allow the continued use of 11 non-totally enclosed uses.
Environmental Defense Fund v. EPA, 636 F.2d 1267 (D.C.Cir.1980). As a result of this decision by the court, the parties agreed upon and the court approved a series of new rulemaking proceedings designed to develop the factual bases for an improved approach toward the regulation of PCBs.
On August 24, 1981, EDF moved for an award of $156,600.00 in attorneys’ fees for its participation in the case. This figure was later amended to $156,248.00. In addition, EDF requested $13,992.00 for the hours devoted by the law firm of Trilling & Kennedy for the preparation of a reply memorandum on the issue of attorneys’ fees.
I. THE CHRONOLOGY OF EVENTS PERTAINING TO EDF’S MOTION FOR ATTORNEYS’ FEES
The following list details the sequence of events pertaining to EDF’s motion for attorneys’ fees:
Aug. 24, 1981 — Motion of Petitioner EDF for attorneys’ fees (hereinafter “EDF Motion”)
Sept. 15,1981 — Opposition of AC Paper & Film Capacitor Section of the Electronic Industries Association to the EDF’s Motions for Attorneys’ Fees (hereinafter “AC Paper Opposition")
Sept. 15, 1981 — Response of EPA to EDF’s Motion (hereinafter “EPA Response”)
Sept. 15, 1981 — Statement of National Electrical Mfgrs.
Oct. 23, 1981 — Motion by EDF for leave to supplement motion for attorneys’ fees
Oct. 23, 1981 — Supplementary declarations in support of EDF’s motion for attorneys’ fees (hereinafter “EDF Supplementary Motion”)
Oct. 23, 1981 — Motion of EDF for leave to file its motion for attorneys’ fees out of time
Oct. 26, 1981 — “Corrected” reply memorandum of EDF to EPA’s and Intervenor EIA’s responses in opposition to motion for attorneys’ fees (hereinafter “EDF Reply”)
Oct. 29, 1981 — Respondent’s motion for enlargement of time in which to respond to petitioner’s motion for leave to supplement motion for attorneys’ fees
Nov. 9, 1981 — Order granting enlargement of time requested by EPA
Nov. 10, 1981 — EPA’s response in opposition to EDF’s motion for leave to supplement motion for attorneys’ fees (hereinafter “EPA Response to Supplementary Motion”)
Nov. 20, 1981 — Reply of EDF to EPA’s Opposition to petitioner’s motion for leave to supplement motion for attorneys’ fees (hereinafter “EDF Reply on Supplementary Motion”)
The opposition filed by intervenor AC Paper raises three issues. First, it is contended that the 837 hours of experienced lawyer time claimed by EDF appears to be an excessive expenditure of time for this case. Second, it is argued that there is no basis for EDF’s request that its “lodestar” fee be adjusted upward by 100%. Finally, it is urged that Petitioner’s Motion should be dismissed because EDF’s request for fees is over nine months out of time. The EPA, although opposing EDF’s motion for fees on several grounds, has not contended that the motion is untimely. EDF, not surprisingly, rejects the claim that its Motion is untimely; however, in an abundance of caution, EDF has filed a “Motion For Leave To File Its Motion for Attorneys’ Fees Out of Time.”
The EPA Response to the EDF Motion does not seriously contest the claim for attorneys’ fees. Rather, EPA makes the following principal arguments:
(1) The court should strictly scrutinize EDF’s claims for attorneys’ fees. EPA Response at 6-9.
(2) EDF’s estimated “lodestar” fee is substantially exaggerated, both in terms of the “number of hours reasonably expended” and the “reasonableness of the hourly rate.” Id. at 12-21.
(3) No upward adjustment to the “lodestar” is warranted. Id. at 21-26.
These arguments duplicate those raised by AC Paper except with respect to the timeliness issue.
II. THE APPLICABLE STATUTORY STANDARD FOR AN AWARD OF ATTORNEYS’ FEES UNDER TSCA
Section 19(d), of TSCA, 15 U.S.C. § 2618(d), authorizes awards of attorneys’ fees in cases involving petitions for review of regulations brought, as was the instant case, pursuant to section 19(a):
The decision of the court in an action commenced under subsection (a), or of the Supreme Court of the United States on review of such decision, may include an award of costs of suit and reasonable attorneys’ fees for attorneys and expert witnesses if the court determines such an award is appropriate.
As was noted in Sierra Club v. Gorsuch, 672 F.2d 33 (D.C.Cir.1982), a case involving a comparable attorneys’ fee provision under the Clean Air Act:
On its face, the statutory provision clearly permits the court to award attorneys’ fees to prevailing, substantially prevailing, or non-prevailing parties in “appropriate” cases.
Id. at 34. The same may be said of the relevant statutory provision in section 19(d) of TSCA.
The significance of the attorneys’ fee provision of TSCA may be highlighted by comparison to other statutory fee provisions. For example, 5 U.S.C. § 552(a)(4)(E) provides that attorneys’ fees under the Freedom of Information Act are available only to a complainant who has “substantially prevailed.” Likewise, 28 U.S.C. § 2412(b), covering awards of fees against the United States, provides that:
Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys... to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity....
(emphasis added). In enacting a provision allowing for an award of attorneys’ fees whenever a court finds that such “an award is appropriate,” it seems plain that Congress intended to give the courts greater latitude than is allowed under statutes such as FOIA (“substantially prevailing”) and 28 U.S.C. § 2412 (“prevailing party”).
Albeit sparse, the legislative history surrounding the attorneys’ fee provision of TSCA confirms this reading and offers some guidance in identifying “appropriate” cases. Section 19 in the original Senate and House bills, i.e., the bills that preceded the passage of TSCA in its final form, each contained provisions allowing the courts to award “reasonable fees for attorneys and expert witnesses if the court determines that such an award is appropriate.” See S. 3149, 94th Cong., 2d Sess. § 19(c)(3) (1976); H.R. 14032, 94th Cong., 2d Sess. § 19(c)(3) (1976), reprinted in Legislative History of the Toxic Substances Control Act, at 136, 384 (1976) (hereinafter “Legislative History”). Although minor modifications were made to section 19 in the conference between the Senate and House Managers of the TSCA bills, the Conference Committee ultimately retained intact the provision allowing for awards of “reasonable fees for attorneys and expert witnesses if the court determines that such an award is appropriate.” Id. at 709.
The only significant discussion of the attorneys’ fee provision apparently occurred on September 28, 1976, during the Senate’s consideration of the Conference Report. Id. at 721, 727-30. During this discussion, Senator Magnuson, who was the ranking Senate Manager on the Conference Committee, made it clear that the attorneys’ fee provision “is not restricted to plaintiffs or to successful parties." Legislative History at 729 (emphasis added). However, Senator Magnuson made a point of indicating that the attorneys’ fee provision was not without limits:
It is not the intention of these provisions to provide an award for an individual or a group if that individual or group may stand to gain significant economic benefits through participation in the proceeding.
Id. at 729.
In addition to his own remarks, Senator Magnuson sought and received consent to print the remarks of Senator Tunney (which had appeared in the Congressional Record of March 26, 1976), as part of the legislative history of section 19. Id. at 727. In his printed comments, Senator Tunney first stated that
[the attorneys’ fee] provision [of TSCA] would allow an award of fees and costs to any party when “appropriate,” a word which should [be] liberally construed to effectuate the purposes of this act.
Id. (emphasis added). Following this initial comment, Senator Tunney added that:
[I]n typical circumstances, the court should follow prevailing case law which holds that a successful plaintiff “should ordinarily recover in [sic] attorneys’ fee unless special circumstances would render such an award unjust.”... “Plaintiff” in the [sic] sense is used to mean the parties seeking to enforce the rights granted by this section and can include an intervenor, or a defendant in some cases....
Where plaintiff’s proceeding is brought in good faith or on the advice of component [sic] counsel, fees and costs would ordinarily be denied to a prevailing defendant.... The standard for awarding fees and costs to a prevailing defendant is not the same as for a plaintiff because, if it were, the risk to the average citizen of bringing suit under this section would be so great it would discourage such suits.
Fees and costs would be awarded to a “successful plaintiff” under this provision where there was a final court order granting the relief requested by plaintiffs, or as a matter of interim relief pending the outcome of the case. The provision does not require the entry of a final order before fees or costs may be recovered.... Such awards are especially important where a party has prevailed on an important matter in the course of the litigation even where he does not ultimately prevail on all the issues. For purposes of the award of fees and costs, it is “appropriate” to make awards when the parties have [1] vindicated rights through consent judgment or [2] without formally obtaining relief, or [3] where such award is in the public interest without regard to the outcome of the litigation.
Id. at 727-28 (emphasis added) (citations omitted). Although Senator Tunney occasionally referred to “prevailing” or “successful” plaintiffs, these references — when read in context — cannot be seen to be inconsistent with his initial view that the attorneys’ fee provision should be “liberally construed.” Id. at 727. Nor do his remarks appear to be inconsistent with Senator Magnuson’s view that the attorneys’ fee provision “is not restricted to... successful parties.” Id. at 729. This latter point is confirmed by Senator Tunney’s observation that attorneys’ fees may be “appropriate” “where the award is in the public interest without regard to the outcome of the litigation.” Id. at 728.
The remaining remarks offered by Senator Tunney pertained to the appropriate measure of attorneys’ fees. On this final point, he commented as follows:
By specifying a general rule for the amount of fees to be awarded, this provision requires the method of calculating fees be no different than that now being utilized in other fields of law as, for example antitrust and securities regulation litigation. The “actual time” spent is that reasonably calculated to advance the client’s interest. The Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.Cal.1974), and the amount can be adjusted for factors including inter alia, the centingent [sic] nature of the success or the quality of the work performed. Lindy Bros. Builders v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973), on remand, 382 F.Supp. 999 (E.D.Pa.1974), or benefits to the public from the suit. Davis v. County of Los Angeles, 8 E.P.D. 9444 (C.D.Cal.1974). Fees should not be reduced merely because the attorneys are salaried employees of public interest and or foundations-funded law firms.
Legislative History at 728.
With these general legislative standards in mind, we may now turn to the specific claims being advanced by EDF for attorneys’ fees in this case.
III. THE EDF CLAIMS FOR ATTORNEYS’ FEES
A. Time Claimed For Work On The Case-In-Chief
The EDF Motion claims a total of 837.4 hours for the three attorneys who were assigned to and worked on the litigation in EDF v. EPA, broken down as follows:
William Butler, Esq. — 190.4 hours
Jacqueline M. Warren — 617.0 hours
David J. Lennett — 30.0 hours
See EDF Motion, EDF Supplementary Motion and EDF Reply. In an “Affidavit of Jacqueline M. Warren,” accompanying the EDF Motion, it is indicated that Ms. Warren was a senior staff attorney at EDF, where she worked from June of 1973 until November of 1980. She graduated from Smith College in 1963 and from George Washington University National Law Center in 1972, where she ranked third in her class. At EDF, she was the principal staff attorney for the Toxic Chemicals Program, and participated in “many administrative and judicial proceedings concerning toxic chemicals.” Id. at 1, 7-8.
William A. Butler was General Counsel of EDF when he participated in this case. He obtained a B.A. degree from Stanford University in 1963, a Master’s degree from Oxford University in 1965, a J.D. degree from Yale University in 1969 and a Ph.D. from Harvard University in 1971. Mr. Butler was employed at EDF from 1970 until 1981 and, during that time, he “initiated, prepared and ultimately supervised the considerable amount of environmental litigation undertaken by EDF in federal district court and in courts of appeals.” Id. at 9.
David J. Lennett graduated from George Washington University National Law Center in 1979, and has been employed as a staff counsel at EDF ever since then. Prior to his graduation, Mr. Lennett worked part time at EDF and assisted with environmental litigation. Following graduation, he became the principal EDF attorney on hazardous waste matters. Id. at 10.
In the extensive descriptions of the work performed by these three EDF attorneys, their hours on EDF v. EPA are broken down as follows:
Category of Legal Work Hours
W. Butler J. Warren D. Lennett
Analysis of Final Regulation; Identification of Issues for Judicial Review; and Preparation of Petition for Review 42
Preparation of Motion to Defer Filing of Appendix; Review of Motions for Leave to Intervene and Consideration of Response 12
Preparation of Response to ALCOA Motion for Stay of Proceedings 7
Analysis of Record; Preparation of EDF Brief 226
Preparation of EDF Reply Brief; Preparation of Joint Appendix; and Preparation for Oral Argument 330
Monitoring of Post-Decision Petitions for Rehearing 16
Preparation for and Attendance at Negotiations w/Respondent and Industry Regarding Stay of Decision Pending Further Rulemaking; Participation in Joint Petitions for Stay of Mandate
Preparation of Materials to Request Attorneys' Fees
TOTAL 190.4 617 30
See EDF Motion (“Memorandum of Points”) at 4, EDF Supplementary Motion, and EDF Reply. The EDF Supplementary Motion (which contains a lengthy document entitled “Supplementary Declarations In Support of Petitioner EDF’s Motion For Attorneys’ Fees”) sets forth in great detail the attorneys’ time logs and narrative descriptions of all legal work done by each attorney.
Following the guidelines set forth in Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc), discussed infra in section III-B, EDF has made the following claim for attorneys’ fees:
Attorney Experience Hours Rate/Hr. Total
William A. Butler 11 yrs. 190.4 $110 $ 20,944.00
Jacqueline M. Warren 9 yrs. 617 $ 90 $ 55,530.00
David J. Lennett 2 yrs. 30 $ 55 $ 1,650.00
"Lodestar" = $ 78,124.00
"Lodestar” Amplification = $156,248.00
B. The Decision In Copeland v. Marshall
In submitting a claim of $156,248.00 for attorneys’ fees for work done on the case in chief, EDF relies heavily on the decision in Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc). Under Copeland, the attorneys’ fee is computed by first determining the “lodestar,” i.e., the number of hours reasonably expended multiplied by a reasonable hourly rate. The “lodestar” fee may then be adjusted up or down to reflect the quality of representation and the contingent nature of success. Id. at 891-94.
As to the factor of “hours reasonably expended,” Copeland states that:
Compiling raw totals of hours spent... does not complete the inquiry. It does not follow that the amount of time actually expended is the amount of time reasonably expended.... Thus, no compensation is due for nonproductive time. For example, where three attorneys are present at a hearing when one would suffice, compensation should be denied for the excess time....
The reasonable hourly rate is that prevailing in the community for similar work.... [A] reasonable hourly rate is the product of a multiplicity of faetors[:]... the level of skill necessary, time limitations, the amount to be obtained in the litigation, the attorney’s reputation, and the undesirability of the case. It follows that there may be more than one reasonable hourly rate for each of the attorneys, and for each of the kinds of work, involved in the litigation.
641 F.2d at 891-92 (emphasis in original) (citations omitted).
Concerning adjustments to the “lodestar” attributable to “the contingent nature of success,” 641 F.2d at 892, the decision in Copeland observes that:
Under statutes like Title VII, only the prevailing party is eligible for a court-awarded fee. An attorney contemplating representation of a Title VII plaintiff must recognize that no fee will be forthcoming unless the litigation is successful. An adjustment in the lodestar, therefore, may be appropriate to compensate for the risk that the lawsuit would be unsuccessful and that no fee at all would be obtained.
It is important to recognize that the contingency adjustment is designed solely to compensate for the possibility at the outset that the litigation would be unsuccessful and that no fee would be obtained.
641 F.2d at 892-93. Since, as has already been indicated, attorneys’ fees may be awarded to “prevailing,” “substantially prevailing” or “non-prevailing” parties under TSCA, this portion of the “contingent nature of success” factor discussed in Copeland is irrelevant in this case.
The court in Copeland also included a factor of “delay” under the heading of “contingent nature of success.” On this point, Copeland states:
The delay in receipt of payment for services rendered is an additional factor that may be incorporated into a contingency adjustment. The hourly rates used in the “lodestar” represent the prevailing rate for clients who typically pay their bills promptly. Court-awarded fees normally are received long after the legal services are rendered. That delay can present cash-flow problems for the attorneys. In any event, payment today for services rendered long in the past deprives the eventual recipient of the value of the use of the money in the meantime, which use, particularly in an inflationary era, is valuable. A percentage adjustment to reflect the delay in receipt of payment therefore may be appropriate.
Id. at 893.
Finally, regarding adjustments to the “lodestar” for “quality of representation,” Copeland holds that:
A quality adjustment is appropriate only when the representation is unusually good or bad, taking into account the level of skill normally expected of an attorney commanding the hourly rate used to compute the “lodestar.” In other words,
the court must recognize that a consideration of “quality” inheres in the “lodestar” award: counsel who possess or who are reputed to possess more experience, knowledge and legal talent generally command hour rates superior to those who are less endowed. Thus, the quality of an attorney’s work in general is a component of the reasonable] hourly rate; this aspect of “quality” is reflected in the “lodestar” and should not be utilized to augment or diminish the basic award under the rubric of “the quality of an attorney’s work.”
Lindy I, then permits an adjustment to the “lodestar” — up or down — based on the all-around performance of counsel in the specific case: “Any increase or decrease in fees to adjust for the quality of work is designed to take account of an unusual degree of skill, be it unusually poor or unusually good.” 487 F.2d at 168....
Lindy II, 540 F.2d at 117-18 (emphasis in original).
Until now the calculations have entirely ignored the results of the litigation. Success was a threshold inquiry relevant to the entitlement vel non to a fee, but the amount or nature of recovery was not considered in setting the “lodestar.” These latter factors should be considered now, under the rubric of “quality of representation.”
Where exceptional results are obtained — taking into account the hourly rate commanded and number of hours expended — an increase in fee is justifiable....
Quality adjustments may be upward or downward. Thus, if a high-priced attorney performs in a competent but undistinguished manner, a decrease in the “lodestar” may be necessary under the “quality of representation” rubric because the hourly rate used to calculate the “lodestar” proved to be overly generous.
641 F.2d at 893-94.
In considering the relevance of Copeland, there is one point that must be emphasized. As noted above, Copeland involved a claim for fees under Title VII, a statute under which the “prevailing party” may seek “a reasonable attorney’s fee as a part of costs.” 42 U.S.C. § 2000e-5(k) (1976). TSCA, on the other hand, allows for “reasonable attorneys’ fees” “if the court determines such an award is appropriate.” 15 U.S.C. § 2618(d). The legislative history of this provision indicates that the attorneys’ fee provision in TSCA “is not restricted to... successful parties,” and that an award of attorneys’ fees may be “appropriate” “where such award is in the public interest without regard to the outcome of the litigation.” Legislative History at 728-29. Thus, while “success” in litigation may be a factor in determining whether an adjustment to the “lodestar” is due, it is not determinative of the question of whether any fee is due. Excluding this point, we believe that Copeland is a controlling precedent that must be followed in this case.
C. EPA’s Opposition To The Claim For Attorneys' Fees
As noted at the outset of this opinion, EPA principally argues that EDF’s claim should be strictly scrutinized, that the estimated “lodestar” fee is exaggerated, and that no upward adjustment to the “lodestar” is warranted. There is no serious claim that EDF is not entitled to some amount of attorneys’ fees.
Specifically, EPA has raised the following issues:
(1) “[A] substantial portion of Ms. Warren’s hours must be deemed as “unproductive” time because it was devoted to pursuit of 2 of 4 claims upon which EDF did not prevail.” EPA Response at 14.
(2) “Ms. Warren’s and Mr. Butler’s hours should be discounted because portions of both were devoted to EDF efforts relating to issues raised by the industry intervenors.” Id.
(3) EPA should not be “taxed with attorneys’ fees relating to post-decision negotiations.” Id. at 17.
(4) “Should the Court disagree that Mr. Butler’s hours for participating in settlement negotiations be entirely disallowed, it should still substantially reduce the total of these 176 hours as being unnecessary to a fair pursuit of the matter.” Id. at 18.
As an alternative proposal to EDF’s claim on hours, EPA suggests that the following time should be excluded from the “lodestar:”
(1) 75% of 12 hours claimed by Ms. Warren for preparation of the motion to defer filing of appendix and to review motions to intervene.
(2) All 7 of the hours claimed by Ms. Warren for preparation of responses to Alcoa’s Motion to Stay.
(3) 25% of 330 hours for preparation of reply brief and oral argument.
(4) All 16 hours spent by Mr. Butler to monitor intervenors’ petitions for rehearing.
(5) 50% of Ms. Warren’s remaining time because EDF prevailed on only two of four claims.
(6) At least 50% of the 176 hours claimed by Mr. Butler for post-decision settlement negotiations.
In sum, EPA argues that the number of “hours reasonably expended” for each attorney should be adjusted as follows:
Attorney EDF Claim EPA Proposal
Mr. Butler 190.4 0-88
Ms. Warren 617 260
Mr. Lennett 30 30
TOTAL'837.4 290-378
In addition, EPA argues that “EDF’s suggested rates should be reduced to reflect the fact that much of the time consumed by its three counsel appears to have included neither ‘in-court’ time, nor other core litigation activity, such as brief writing.” EPA Response at 20. EPA thus urges that the rates for EDF attorneys should be adjusted downwards as follows:
Attorney EDF Claim EPA Proposal
Mr. Butler $110.00 $82.50
Ms. Warren 90.00 75.00
Mr. Lennett 55.00 55.00
EPA Response at 21.
Finally, EPA contends that there should be no upward adjustment in the “lodestar” because (1) “the efforts of EDF’s counsel were substantially within the range of skill normally expected of attorneys receiving the rates that they suggest,” id. at 22; (2) “the burden faced by EDF... is the standard burden of any litigant in an administrative agency case,” id. at 25; and (3) “no contingency adjustment would be warranted here for delay in renumeration [because] EDF has only recently submitted its requests for fees” and because “the hourly rates they suggest are derived from other recent decisions and, therefore, reflect current market values.” Id. at 25.
IV. AN EVALUATION AND JUDGMENT CONCERNING THE “HOURS REASONABLY EXPENDED,” THE “REASONABLE HOURLY RATE,” AND “ADJUSTMENTS TO THE ‘LODESTAR’ ”
Having outlined the applicable statutory standard, the controlling judicial precedents (as set forth in Copeland) and the contentions of the parties, we now may proceed to determine' the merits of EDF’s claim for attorneys’ fees.
A. Documentation
EPA initially argues that EDF’s claim should be rejected for “lack of adequate documentation.” See note 2 supra. For the reasons hereafter enumerated, we reject this contention as wholly untenable on the record before us.
In Copeland, this court stated that, with respect to “documentation” of attorneys’ fee claims, the party seeking a fee should submit information that will allow the reviewing court to “segregate into categories the kinds of work performed by each participating attorney.” 641 F.2d at 891. The court added that:
It is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney. But without some fairly definite information as to the hours devoted to various general activities, e.g., pretrial discovery, settlement negotiations, and the hours spent by various classes of
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.
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
UNITED STATES ex rel. EICHENLAUB v. SHAUGHNESSY, ACTING DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION.
NO. 3.
Argued November 16-17, 1949.
Decided January 16, 1950.
George G. Shiya argued the cause and filed a brief for petitioner in No. 3.
Eugene H. Nickerson argued the cause and filed a brief for petitioner in No. 82.
Harold D. Cohen argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Campbell and Robert S. Erdahl.
Mr. Justice Burton
delivered the opinion of the Court.
These cases present the question of whether § 1 of the Act of May 10, 1920, authorizes the deportation of an alien under the following circumstances occurring since that Act took effect:
(1) The alien was naturalized; (2) while he was a naturalized citizen he was convicted of a conspiracy to violate the Espionage Act of 1917; (3) thereafter, in a denaturalization proceeding, his citizenship was revoked and his certificate of naturalization canceled on the ground that he had procured it by fraud; and (4) the proper authority, after the required hearings, found the alien to be an undesirable resident of the United States and ordered him deported. For the reasons hereinafter stated, we hold that the Act authorizes such deportation.
No. 3 — The Eichenlaub Case.
Richard Eichenlaub, the relator, was born in Germany in 1905, and entered the United States from there in 1930. He was naturalized as an American citizen in 1936, and has resided in the United States continuously since his reentry in 1937, when he returned from a visit to Germany. In 1941, on his plea of guilty in the United States District Court for the Eastern District of New York, he was convicted of conspiring to act as an agent for a foreign government without having been registered with the Secretary of State. He was sentenced to imprisonment for 18 months and fined $1,000. In 1944, with his consent, a judgment was entered in the United States District Court for the Southern District of New York canceling his citizenship on the ground of fraud in its procurement. Deportation proceedings were then instituted against him and, after a hearing before an Immigration Inspector and a review by the Board of Immigration Appeals, the Attorney General, in 1945, ordered his deportation.
This proceeding for a writ of habeas corpus was then filed in the court last named. After hearing, the writ was dismissed and the dismissal was affirmed by the United States Court of Appeals for the Second Circuit. 167 F. 2d 659. We denied certiorari. 335 U. S. 867. However, when the Court of Appeals affirmed the Willumeit case, now before us, on the authority of this case, but called attention to the added impression which had been made upon it by the argument in favor of Willumeit on the point above stated, we vacated our denial of certiorari in this case and granted certiorari in both. 337 U. S. 955.
No. 82 — The Willumeit Case.
In 1905, Otto A. Willumeit, the relator, was born in Lorraine, which at that time was a part of Germany, but at the time of his arrest for deportation had become a part of France. He entered the United States from there in 1925. In 1931 he was naturalized, and he has resided in the United States continuously since his reentry in 1941 after a visit to Mexico. In 1942, on his plea of guilty in the United States District Court for the District of Connecticut, he was convicted of having conspired to violate that portion of the Espionage Act of 1917 which made it a crime to transmit to an agent of a foreign country information relating to the national defense of this country, with intent or reason to believe that such information would be used to the injury of the United States or to the advantage of a foreign nation. He was sentenced to imprisonment for five years. In 1944, with his consent, a judgment was entered in the United States District Court for the Northern District of Illinois canceling his citizenship on the ground of fraud in its procurement. Deportation proceedings were then instituted against him and, after a hearing before an Immigration Inspector and a review by the Board of Immigration Appeals, the Attorney General, in 1947, ordered his deportation.
This proceeding for a writ of habeas corpus was filed in the United States District Court for the Southern District of New York and, after a hearing, the writ was dismissed. The United States Court of Appeals for the Second Circuit affirmed the dismissal on the authority of its decision in the Eichenlaub case. 171 F. 2d 773. Because of the importance of the issue to American citizenship, we granted certiorari. 337 U. S. 955.
The proper scope of the Act of 1920 as applied to these cases is found in the ordinary meaning of its words. The material provisions of the Act are as follows:
“. . . That aliens of the following classes . . . shall, upon the warrant of the [Attorney General], be taken into his custody and deported ... if the [Attorney General], after hearing, finds that such aliens are undesirable residents of the United States, to wit:
. . . . .
“(2) All aliens who since August 1, 1914, have been or may hereafter be convicted of any violation or conspiracy to violate any of the following Acts or parts of Acts, the judgment on such conviction having become final, namely:
“(a) [The Espionage Act of 1917, as amended]."
The above words require that all persons to be deported under this Act shall be “aliens.” They do not limit its scope to aliens who never have been naturalized. They do not exempt those who have secured certificates of naturalization, but then have lost them by court order on the ground of fraud in their procurement. They do not suggest that such persons are not as clearly “aliens” as they were before their fraudulent naturalization. There is no question as to the power of Congress to enact a statute to deport aliens because of past misconduct. That is what Congress did in the Act of 1920, and there is no occasion to restrict its language so as to narrow its plain meaning.
The one substantial issue is whether the Act requires that the relators not only must have been “aliens” at the times when they were ordered deported, but that they must also have had that status at the times when they were convicted of designated offenses against the national security. The Government suggests that one route to a conclusion on this issue is to hold that the relators, as a matter of law, were “aliens” when so convicted. The basis it suggests for so holding is that the judicial annulment of the relators’ naturalizations on the ground of fraud in their procurement deprived them of their naturalizations ab initio. Rosenberg v. United States, 60 F. 2d 475 (C. A. 3d Cir.). They thus would be returned to their status as aliens as of the date of their respective naturalizations. Accordingly, they would come within the scope of the Act of 1920, even if that Act were held to require that all offenders subject to deportation under it also must have had an alien status when convicted of the designated offenses.
In our opinion, it is not necessary, for the purposes of these cases, to give a retroactive effect to the denaturalization orders. A simpler and equally complete solution lies in the view that the Act does not require that the offenders reached by it must have had the status of aliens at the time they were convicted. As the Act does not state that necessity, it is applicable to all such offenders, including those denaturalized before or after their convictions as well as those who never have been naturalized. The convictions of the relators for designated offenses are important conditions precedent to their being found to be undesirable residents. Their status as aliens is a necessary further condition of their deport-ability. When both conditions are met and, after hearing, the Attorney General finds them to be undesirable residents of the United States, the Act is satisfied.
The statutory language which says that “aliens who since August 1, 1914, have been or may hereafter be convicted . . (emphasis supplied) refers to the requirement that the deportations be applicable to all persons who had been convicted of certain enumerated offenses since about the beginning of World War I (August 1, 1914), whether those convictions were had before or after May 10,1920. The crimes listed were not crimes in which convictions depended upon the citizenship, or lack of citizenship, of their perpetrators. In fact, they were crimes against the national security, so that their commission by naturalized citizens might well be regarded by Congress as more reprehensible than their commission by aliens who never had been naturalized.
The recognized purpose of the Act was deportation. It is difficult to imagine a reason which would have made it natural or appropriate for Congress to authorize the Attorney General to pass upon the undesirability and deportability of an alien, never naturalized, who had been convicted of espionage, but would prohibit the Attorney General from passing upon the undesirability and deportability of aliens, such as the relators in the instant cases, who had procured certificates of naturalization before their convictions of espionage, but later had been deprived of those certificates on the ground of fraud in their procurement. If there were to be a distinction made in favor of any aliens because they were at one time naturalized citizens, the logical time at which that status would be important would be the time of the commission of the crimes, rather than the purely fortuitous time of their conviction of those crimes. Not even such a distinction finds support in the statute.
The failure of Congress to give expression to the distinction, here urged by the relators, between aliens who never have been naturalized and those who have been denaturalized, was not due to unfamiliarity with such matters. In 1920, Congress must have been familiar with the status of aliens denaturalized under § 15 of the Act of June 29, 1906, 34 Stat. 601, see 8 U. S. C. § 736, or expatriated under § 2 of the Citizenship Act of March 2, 1907, 34 Stat. 1228, see 8 U. S. C. § 801. It had had experience with the deportation of undesirable aliens under § 19 of the Immigration Act of February 5, 1917, 39 Stat. 889, see 8 U. S. C. § 155, as well as under other wartime Acts and Proclamations. These Acts did not distinguish between aliens who never had been naturalized, and those who had obtained naturalization by fraud only to lose it by court decree. If the Act of 1920 had been intended to initiate the distinction here urged by the relators, it is likely that the change would have been made by express provision for it. We find nothing in its legislative history that suggests a congressional intent to distinguish between two such groups of undesirable criminals.
The Congressional Committee Reports demonstrate that, while this statute was framed in general language and has remained in effect for 30 years, its enactment originally was occasioned by a desire to deport some or all of about 500 aliens who were then interned as dangerous enemy aliens and who might be found, after hearings, to be undesirable residents, and also to deport some or all of about 150 other aliens who, during World War I, had been convicted of violations of the Espionage Act or other national security measures, and who might be found, after hearings, to be undesirable residents. It is hardly conceivable that, under those circumstances, Congress, without expressly saying so, intended to prevent the Secretary of Labor (or his successor, the Attorney General) from deporting alien offenders merely because they had received their respective convictions at times when they held certificates of naturalization, later canceled for fraud. To do so would permit the denaturalized aliens to set up a canceled fraudulent status as a defense, and successfully to claim benefits and advantages under it. Congress, in 1920, evidently wanted to provide a means by which to free the United States of residents who (1) had been or thereafter were convicted of certain offenses against the security of the United States, (2) had been or thereafter were found, after hearing, to be undesirable residents of the United States, and (3) being aliens were subject to deportation. Congress said just that.
We have given consideration to such other points as were raised by the relators, but we find that they do not affect the result.
The judgment of the Court of Appeals in each case is therefore
Affirmed.
Mr. Justice Douglas and Mr. Justice Clark took no part in the consideration or decision of these cases.
41 Stat. 593, see 8 U. S. C. § 157.
Act of June 15, 1917, 40 Stat. 217.
This was under § 37 of the general conspiracy statute, 35 Stat. 1096, 18 U. S. C. (1946 ed.) § 88, now 18 U. S. C. § 371; and under § 3 of Title VIII of the Espionage Act of 1917,40 Stat. 226,22 U. S. C. § 233, as amended by § 6 of the Act of March 28, 1940, 54 Stat. 80, 22 U. S. C. (1946 ed.) § 601, now 18 U. S. C. § 951. Several other defendants stood trial in this proceeding, and were convicted both on this and on a general espionage count. Their conviction was affirmed on this count, but reversed on the other. United States v. Heine, 151 F. 2d 813 (C. A. 2d Cir.).
Under § 338 of the Nationality Act of 1940, 54 Stat. 1158-1160, 8 U. S. C. § 738.
Under § 1 of the Act of May 10, 1920, 41 Stat. 593-594, 8 U. S. C. § 157.
Under the 1940 Reorganization Plan No. Y, 54 Stat. 1238, the functions and powers of the Secretary of Labor under the Act of May 10, 1920, were transferred to the Attorney General. The warrant of deportation recited that the relator had been “found to be a member of the undesirable classes of alien residents enumerated . . .” in the Act of May 10, 1920. While the administrative file is not in the printed record, it was used in argument in the Court of Appeals and is on file here. The Board of Immigration Appeals at page 5 of its opinion found as a fact that the “respondent is an undesirable resident of the United States.” The Court of Appeals, at 167 F. 2d 660, properly recognized this additional matter in the record as justifying its acceptance of the less specific finding recited in the warrant of deportation, and as distinguishing this case from Mahler v. Eby, 264 U. S. 32, 42-46, on that point.
This conviction was under §§ 2 and 4 of Title I of the Act of June 15, 1917, 40 Stat. 218-219, 50 U. S. C. (1946 ed.) §§ 32 and 34, now 18 U. S. C. §§ 794 and 2388.
See note 4, supra. In this record the final decree of denaturalization is set forth in full. Among other things, it states that the order admitting the relator to citizenship—
“is hereby vacated, annulled and set aside, and that the certificate of citizenship, ... is hereby cancelled and declared null and void, . . . and the defendant Otto Albert Willumeit is hereby forever restrained and enjoined from setting up or claiming any rights or privileges, benefits or advantages whatsoever under said order, . . . or the certificate of citizenship issued by virtue of said order.”
The order was based not only upon § 1 of the Act of May 10, 1920, 41 Stat. 593-594, 8 U. S. C. § 157, the applicability of which in turn was based upon the relator’s conviction of a violation of the Espionage Act of 1917, but also upon §§ 13 and 14 of the Immigration Act of 1924, 43 Stat. 161-162, as affected by 46 Stat. 581, 50 Stat. 165, the 1940 Reorganization Plan No. V, 54 Stat. 1238, and 60 Stat. 975, 8 U. S. C. §§ 213 and 214, having to do with relator’s reentry into the United States from Mexico in 1941. The Court of Appeals found it unnecessary to pass on this alleged ground for deportation in view of its conclusion as to the other ground. 171 F. 2d at 775. We concur for the same reason.
As in the Eichenlaub case, the warrant of deportation apparently stated that it was based on the fact that the relator “has been found to be a member of the undesirable classes of alien residents ....’’ While the warrant is not printed in the record, the findings of the Commissioner of Immigration and of the Board of Immigration Appeals are printed in full. Each contains an express finding that the relator “is an undesirable resident of the United States.” Each states reasons for so concluding.
The return to the writ of habeas corpus in this case states that, in addition to issuing the above-described warrant of deportation, the Attorney General ordered the relator interned in 1945 as a dangerous alien enemy and, in 1946, ordered the relator removed from this country for that reason. That proceeding derives its authority from the Alien Enemy Act of July 6, 1798, 1 Stat. 577, as it appears in R. S. § 4067, as affected by 40 Stat. 531, and Presidential Proclamation No. 2655 of July 14, 1945, 3 C. F. R. 1945 Supp. 29; 59 Stat., Pt. 2, 870, see 50 U. S. C. § 21. It thus raises questions as to the “enemy” status of an alien born in Lorraine, which at the time of his birth was a part of Germany, but at the time of his arrest was a part of France. While the Government refers to this Act in its argument in interpreting the Act of May 10, 1920, as in pari materia, it does not press this arrest as a separate ground for dismissal of the writ of habeas corpus. See United States ex rel. Zeller v. Watkins, 167 F. 2d 279 (C. A. 2d Cir.); United States ex rel. Gregoire v. Watkins, 164 F. 2d 137 (C. A. 2d Cir.); United States ex rel. D’Esquiva v. Uhl, 137 F. 2d 903 (C. A. 2d Cir.); United States ex rel. Umecker v. McCoy, 54 F. Supp. 679 (N. D.). The court below did not find it necessary to pass on this issue (171 F. 2d at 775), nor do we.
See note 6, supra.
The first paragraphs of the Act of May 10, 1920, are, in full, as follows:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That aliens of the following classes, in addition to those for whose expulsion from the United States provision is made in the existing law, shall, upon the warrant of the Secretary of Labor, be taken into his custody and deported in the manner provided in sections 19 and 20 of the Act of February 5, 1917, entitled 'An Act to regulate the immigration of aliens to, and the residence of aliens in, the United States,’ if the Secretary of Labor, after hearing, finds that such aliens are undesirable residents of the United States, to wit:
“(1) All aliens who are now interned under section 4067 of the Revised Statutes of the United States and the proclamations issued by the President in pursuance of said section under date of April 6, 1917, November 16, 1917, December 11, 1917, and April 19, 1918, respectively.
“(2) All aliens who since August 1, 1914, have been or may hereafter be convicted of any violation or conspiracy to violate any of the following Acts or parts of Acts, the judgment on such conviction having become final, namely:
“(a) An Act entitled ‘An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes/ approved June 15, 1917, or the amendment thereof approved May 16, 1918; . . . .” 41 Stat. 593-594, see 8 U. S. C. § 157.
The subsequent subdivisions (2) (b) to (h), inclusive, refer to the Explosives Act, 40 Stat. 385; Act Restricting Foreign Travel, 40 Stat. 559; Act Punishing Injury to War Material, 40 Stat. 533; Army Emergency Increase Act, 40 Stat. 80, 884, 955; Act Punishing Threats Against the President, 39 Stat. 919; Trading with the Enemy Act, 40 Stat. 411; and the Seditious Conspiracy Section of the Penal Code, 35 Stat. 1088.
The word “alien” is not defined in the Act. It is, however, defined in closely related statutes. The Immigration Act of February 5, 1917, provides: “the word ‘alien’ wherever used in’this Act shall include any person not a native-born or naturalized citizen of the United States; . . . .” 39 Stat. 874, see 8 U. S. C. § 173. The Immigration Act of May 26, 1924, provides: “The term ‘alien’ includes any individual not a native-born or naturalized citizen of the United States, . . . .” 43 Stat. 168, see 8 U. S. C. § 224. These definitions are in effect today. In Title 8 of the United States Code they are included in and are made to apply to the entire chapter on Immigration and that chapter includes as § 157 the Act of May 10, 1920.
While the Act also makes no express distinction between its applicability to aliens who never have been naturalized and to those who have been naturalized, but have lost their naturalized citizenship by lawful and voluntary expatriation (see 8 U. S. C. §§ 800-810), the possibility of such a distinction is not before us in the instant cases. The required finding by the Attorney General, after hearing, that any alien who is to be deported is an undesirable resident of the United States prevents the automatic deportation of anyone under this Act without such a hearing and finding.
Mahler v. Eby, 264 U. S. 32; Ng Fung Ho v. White, 259 U. S. 276, 280; Bugajewitz v. Adams, 228 U. S. 585; Fong Yue Ting v. United States, 149 U. S. 698, 730.
See note 12, supra.
“The practice of filing proceedings to cancel certificates of naturalization became widespread immediately after The 1906 Act went into effect. In the fiscal year 1907 there were eighty-six certificates cancelled; in 1908 there were four hundred and fifty-seven; and in 1909, nine hundred and twenty-one. During the thirty years following the effective date of the 1906 Act, more than twelve thousand certificates of naturalization were cancelled on the ground of fraud or on the ground that the order and certificate of naturalization were illegally procured.” Cable, Loss of Citizenship 4-5 (1943).
See H. R. Rep. No. 143 and S. Rep. No. 283, 66th Cong., 1st Sess.; 58 Cong. Rec. 3362-3376 (1919); Ludecke v. Watkins, 335 U. S. 160, 167-168, n. 12, 179-181.
Compare the injunction included in the final decree of denaturalization quoted in note 8, sufra.
Among these is the claim in the Eichenlaub case that the Act of 1920 does not apply to his conviction under the Espionage Act of 1917, because, in substance, the penalty for its violation had been increased in 1940. This contention is without merit.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In re M.S.V., INC., Martin Specialty Vehicles, Inc., Debtors. M.S.V., INC., Plaintiff, Appellant, v. BANK OF BOSTON—WESTERN MASSACHUSETTS, N.A., Defendant, Appellee.
No. 89-1341.
United States Court of Appeals, First Circuit.
Heard Nov. 6, 1989.
Decided Dec. 15, 1989.
David M. Nickless, with whom Nickless and Phillips, Fitchburg, Mass., was on brief, for plaintiff, appellant.
Francis H. Fox with whom Lawrence S. Buonomo, Bingham, Dana & Gould, Boston, Mass., Maurice M. Cahillane and Egan Flanagan & Egan, P.C., Springfield, Mass., were on brief, for defendant, appellee.
Before BREYER, Circuit Judge, VAN GRAAFEILAND, Senior Circuit Judge, and SELYA, Circuit Judge.
Of the Second Circuit, sitting by designation.
BREYER, Circuit Judge.
M.S.V., Inc., the appellant, borrowed money from the appellee, the Bank of Boston. It gave the Bank a secured interest in company assets as collateral. In early 1986 the Bank foreclosed, seized the collateral, sold it, and eventually placed the proceeds — about $20,000 — in escrow. M.S.V. filed for Chapter 11 bankruptcy, sued the Bank in state court, and brought a similar suit in federal bankruptcy court. It basically claimed that the Bank, in foreclosing, broke its contract and violated a host of state tort and unfair business practice laws; it also asked the federal bankruptcy court to order the Bank to turn over the $20,000 collateral proceeds, which, it said, belonged to it. The bankruptcy court decided it lacked jurisdiction to hear most of the state claims, but it heard the “breach of contract” claim and awarded M.S.V. about $560,000 in damages.
The Bank appealed the $560,000 award to the federal district court. 97 B.R. 721 (1989). 28 U.S.C. § 158(a). That court noted that the damage award rested upon a state law (breach of contract) cause of action that arose before M.S.V.’s bankruptcy; it found that the Bank had not consented to the bankruptcy court hearing that claim; and it held that the bankruptcy court therefore lacked jurisdiction to award the damages. See In re Arnold Print Works, Inc., 815 F.2d 165, 167 (1st Cir.1987) (state law claims arising prior to bankruptcy filing are typically “non-core” proceedings that a bankruptcy court can hear only with the parties' consent). M.S.V. now appeals this district court determination to us.
We must dismiss this appeal because the district court order from which M.S.V. appeals is not “final.” 28 U.S.C. § 158(d); 28 U.S.C. § 1291. The district court order remands the case to the bankruptcy court, and the parties have stipulated that the bankruptcy court must now decide at least two related matters:
1) whether the Bank or M.S.V. is entitled to the $20,000 proceeds from the sale of the collateral, and
2) whether the Bank’s claim against M.S.V. should be equitably subordinated to the claims of other M.S.V. creditors. See 11 U.S.C. § 510(c).
These further matters are part of, or closely related to, M.S.V.’s basic dispute with the Bank; they do not involve the totally unrelated claim of some other creditor to M.S.V. assets; and they require significantly more than simply “ministerial” bankruptcy court activity. Thus, prior case law in this circuit makes clear that M.S.V. cannot now appeal. See In re Saco Local Development Corp., 711 F.2d 441, 445-46 (1st Cir.1983) (“a 'proceeding’ within a bankruptcy case,” not the entire case, is “the relevant ‘judicial unit’ for purposes of finality;” judgment is “final” when it “conclusively determines [such] a separable dispute over a creditor’s claim or priority”); Tringali v. Hathaway Machinery Co., 796 F.2d 553, 558 (1st Cir.1986) (same); In re American Colonial Broadcasting Corp., 758 F.2d 794, 801 (1st Cir.1985) (same); In re Gould & Eberhardt Gear Machinery Corp., 852 F.2d 26, 29 (1st Cir.1988) (district court determination in respect to such a separable dispute is not “final” when the court remands the case for “further proceedings” that are “significant” and not “only ministerial”). The district court determination about the $562,000 damage award is not appealable as a “collateral” order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), because it is neither “completely separate from the merits” of M.S.V.’s bankruptcy court action against the Bank, nor “effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978).
M.S.V. also asks us to order the district court to assess sanctions against the Bank for having filed a district court brief of maximum permitted length (50 pages), but which contained “eighty-five lineal inches of single spaced footnotes and no true statement of facts.” We agree with the Bank that whether or not to assess such sanctions is a matter for the district court. We also note, however, that the Bank (after obtaining permission) filed an overly long (sixty instead of fifty) page brief in this court. Having studied that brief, we can find no reason for its unusual length; indeed, despite that length it failed to explain clearly to us just what had happened in the courts below. We have learned, through experience, that it is typically the shorter briefs that are the most helpful, perhaps because the discipline of compression forces the parties to explain clearly and succinctly what has happened, the precise legal issue, and just why they believe the law supports them. Be that as it may, we believe it appropriate to discourage the filing of excessively lengthy briefs in this court. Although it is difficult to determine whether length is excessive before we hear a case, we have a more educated view thereafter. Consequently, whether or not we grant permission to file an overly long brief, we may assess special costs if we subsequently conclude that the extra length was unnecessary and did not help. Since M.S.V.’s request for sanctions and the district court’s adverse comments should have alerted the Bank’s counsel to his briefing problem, we shall assess double costs in this case against the Bank.
Appeal dismissed without prejudice.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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songer_concur
|
1
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who either wrote a concurring opinion, joined a concurring opinion, or who indicated that they concurred in the result but not in the opinion of the court.
FEMINIST WOMEN’S HEALTH CENTER, INC., a Florida non-profit Corporation, Plaintiff-Appellant Cross-Appellee, v. Mahmood MOHAMMAD, M. D., et al., Defendants-Appellees Cross-Appellants.
No. 77-1924.
United States Court of Appeals, Fifth Circuit.
Dec. 20, 1978.
Thornberry, Circuit Judge, filed opinion specially concurring.
See also, D.C., 415 F.Supp. 1258.
Betty Owen Stinson, Steven L. Seliger, Kent Spriggs, Tallahassee, Fla., for plaintiff-appellant.
Nadine Taub, Women’s Rights Litigation Clinic, Joan Friedland, Newark, N. J., amicus curiae for American Public Health Assoc., Nat’l Abortion Rights Action League & American Civil Liberties Union.
Murray M. Wadsworth, M. Stephen Turner, Tallahassee, Fla., for Curry.
John C. Cooper, Tallahassee, Fla., for Griner.
J. Lewis Hall, Jr., Anne C. Booth, Tallahassee, Fla., for Messer.
E. Harper Field, Frank J. Santry, Tallahassee, Fla., for Mohammad, Curry, Crane, and Griner.
Michael I. Schwartz, Stephen Marc Slepin, Tallahassee, Fla., for Palmer.
Before WISDOM, THORNBERRY and RUBIN, Circuit Judges.
WISDOM, Circuit Judge:
This appeal from an antitrust summary judgment raises questions concerning the jurisdictional reach of the Sherman Act, the scope of the Noerr-Pennington defense, the Parker doctrine of state action immunity, and the applicability of Florida’s anticombination statute to the medical profession. The Feminist Women’s Health Center, Inc. (“the Center”), brought this action for injunctive and monetary relief against Drs. Mohammad, Curry, Knight, Crane, Griner, Messer, and Palmer (individually and in his capacity as Executive Director of the Florida Board of Medical Examiners (“BOME”)). The Center alleged that the doctors conspired to boycott the Center’s Tallahassee abortion clinic, and to fix the prices for abortions in the Tallahassee area in violation of federal and state antitrust laws. The Center further alleged that the doctors individually, and in combination, attempted to, and in fact did, monopolize the market for providing women’s health and abortion services in the Tallahassee area. In addition, the Center complained that certain tactics used by the defendants amounted under Florida law to tortious interference with the Center’s business relationships with its physicians. After extensive pretrial discovery, the trial court granted summary judgment in favor of all defendants on all counts, and the Center brought this appeal. The doctors cross-appeal the trial court’s early ruling denying their motion for summary judgment for lack of subject matter jurisdiction. We affirm the trial court’s jurisdictional ruling and its order with respect to the state law antitrust counts and reverse on all other points.
I
BACKGROUND
Because this appeal arises from a summary judgment, the statement of the background of the case is drawn from a record that reflects numerous disputed or potentially disputable issues of fact. Summary judgment having been entered against the plaintiff Center, the following discussion views disputed issues of fact in a manner favorable to the plaintiff.
The Feminist Women’s Health Center, Inc., a Florida nonprofit corporation, operates the Women’s Choice Clinic, a women’s health and first trimester elective abortions clinic in Tallahassee, Florida. The Center was incorporated in 1974 and opened its office in Tallahassee on June 29, 1974. The Center employs ten to fourteen lay “health workers” and occasionally a laboratory technologist, a registered nurse, and a nurse-practitioner. The Center does not keep full time physicians on its staff, but rather uses physicians on a part-time basis to perform abortions, and, when possible, to provide “back-up” emergency services when patients develop post-operative complications. The Center charges about $150 for an abortion, $25 to $35 of which is paid by the Center to the operating physician.
Defendants Mohammad, Curry, Crane, Knight, Griner, and Messer are Tallahassee physicians specializing in obstetrics and gynecology. All are members of the gynecology and obstetrics staff (“OB-GYN Staff”) of Tallahassee Memorial Hospital, the only hospital in Leon County, Florida, that has complete facilities for treating patients with obstetrical and gynecological problems. Defendant Palmer is a physician who practices in Tallahassee, and is Executive Director of the Florida Board of Medical Examiners, the body that licenses physicians and regulates the practice of medicine in the State of Florida.
Even before it opened its doors, the clinic was a matter of concern to the obstetrics and gynecological staff of Tallahassee Memorial. At its regular monthly staff meeting in May, 1974 the OB-GYN Staff adopted a resolution that it would not “approve” the Center if no member of the hospital staff were associated with the Center. The resolution, according to Dr. Brickler, the member of the OB-GYN Staff who first brought the Center to the staff’s attention, was intended to express the staff’s concern that the clinic have an “acceptable” local physician who would be available to take care of post-operative emergencies.
Despite some initial difficulties in recruiting physicians, the clinic operated without substantial controversy its first year. In the Spring of 1974, Lynn Heidelberg and Linda Curtis, two of the Center’s directors, approached Drs. Brickler and Mohammad about working at the clinic. According to Ms. Curtis, Dr. Mohammad initially expressed interest in doing so, but at a second meeting changed his mind, citing pressure from his colleagues as well as the May resolution of the OB-GYN Staff. Dr. Mohammad indicated that he might consider working at the clinic, but only at a fee of $100 per procedure, a figure that is approximately triple the fee customarily received by operating physicians at the clinic. Dr. Brickler, on the other hand, decided to work at the clinic after having initially expressed fears that the OB-GYN Staff would disapprove of his doing so. Dr. Brickler informed the Center, however, that he would associate with the clinic on the condition that the clinic not advertise its services. The Center agreed and Dr. Brickler began his work for the clinic. In April 1975 Dr. McWilliams, another member of the Tallahassee Memorial OB-GYN Staff, began performing abortions at the clinic and handling post-operative aftercare. Drs. Brickler and McWilliams performed 816 abortions at the clinic that first year.
The clinic’s difficulties began in June of 1975 when Linda Curtis gave an interview to the Tallahassee Democrat, the city’s daily newspaper. The interview resulted in the publication in the June 20 edition of the Democrat of an article in which Ms. Curtis described the clinic and favorably compared its services with hospital abortion procedures. In particular, the interview emphasized the relative inexpensiveness of first trimester elective abortions at the clinic, and the advantages to women of choosing a place where “women set the pace for what goes on”. The next day, Dr. Brickler terminated his relationship with the clinic, apparently because of the article.
The newspaper article succeeded in making the clinic, once again, a subject of great interest to the OB-GYN Staff at Tallahassee Memorial. At the July 1, 1975 meeting of the OB-GYN Staff, at which Drs. Messer, Griner, Crane, and Mohammad were present, Dr. Messer noted that Dr. Brickler was no longer working at the clinic and that an out-of-town physician was working there. The staff discussed the question of the ethics of the clinic’s advertising, and concluded that physicians should not associate with organizations that advertise their medical services. The staff decided to bring the matter of the clinic’s advertising to the attention of the State Board of Medical Examiners. The minutes of that meeting record that “Dr. Brickler commented he feels the local situation will collapse if it does not get support from the Obstetricians”. A day or so after that meeting, Dr. McWilliams, who had attended the meeting, called the Center to inform it that he could not continue working at the clinic unless the controversy concerning the clinic’s advertising was straightened out. He informed the clinic that Dr. Mohammad was upset about the newspaper article. In the days following the July 1 meeting Ms. Curtis met with Dr. Mohammad, who said that the Center should stop all advertising and that those associated with it should not make speeches about the Center. At that time Dr. Mohammad agreed to arrange an emergency meeting of the OB-GYN Department so that representatives of the Center could meet the other members of the staff. When Ms. Curtis and another director of the Center arrived for the emergency meeting on July 8 or 9 only Dr. Mohammad was present. Dr. McWilliams stated in his deposition that he was notified of a meeting earlier that day, but was not informed about the purpose of the meeting and therefore failed to attend. No further meeting was scheduled. Dr. McWilliams testified that he again raised the question of such a meeting with Dr. Mohammad, but Dr. Mohammad informed him that he had polled the other members of the staff and that no one wished to meet with representatives of the Center.
At the next monthly meeting of the 0B-GYN Service on August 5, 1975, the staff passed a motion that the Service write a letter to the Capitol Medical Society (“CMS”), a private organization of Tallahassee area physicians, expressing the doctors’ view that physicians in the CMS should not associate with organizations that advertise their medical services. Dr. McWilliams spoke up to explain that he was unaware when he began working for the Center that the clinic was controversial because of its advertising and its nonprofit status. He revealed to the staff that he had told the clinic of his plans to leave if the controversy was not settled. Four days later, he told the Center that he would have to leave, citing the controversy and his desire not to fall into disfavor with his colleagues. As Dr. McWilliams explained in his deposition, he chose to leave “because of something that I was doing that they [the Tallahassee OB-GYNs] considered unethical”. Shortly thereafter, Dr. McWilliams left the clinic.
About the time that Dr. McWilliams left the clinic, the Center called upon Dr. Brickler, who had severed his relations with the clinic some months earlier, in an effort to recruit him to handle backup or post-operative emergencies, either on a formal or an informal basis. Dr. Briekler, according to his deposition, told the Center that if it referred a patient to his office for post-operative care he would see the patient, just as he would see any other patient. He declined, however, to enter any formal arrangement with the Center. Briekler indicated that to do so would involve him in controversy with his fellow obstetricians. The OB-GYNs, according to Brickler’s deposition, “almost literally sleep together”, and his colleagues could make things very unpleasant for him; they could, for example, refuse to take his patients were he to leave town.
Beginning in July or August 1975, the clinic began to rely heavily on the services of residents-in-training at the University Hospital in Jacksonville. The Center had arrangements with the Jacksonville residents that they would come to Tallahassee one day a week to perform abortions at the clinic. On August 29 the OB-GYN Staff sent a letter to defendant Palmer, Executive Director of the BOME, stating that out-of-town doctors were performing surgery at the clinic without adequate provision for continuous aftercare, in possible violation of the Florida Medical Practice Act. The letter requested Dr. Palmer to take “appropriate corrective measures”. Acting on the staff’s complaint, as he was required to do by law, Dr. Palmer visited the clinic, accompanied by Ed McCollum, the Chief Investigator of the BOME, to view its operations and to determine what doctors were practicing there. He found that Dr. Walker Whaley, a resident physician from University Hospital in Jacksonville, was performing abortions at the clinic. Dr. Palmer inquired about aftercare coverage of the clinic’s abortion patients, and was told by Ms. Curtis that the clinic had arrangements with Tallahassee Memorial to take care of post-operative complications. Later that day, Dr. Palmer called the hospital concerning the clinic’s backup coverage. The hospital administrator informed Palmer that the backup arrangements were not formal, but that he had told Ms. Curtis that any clinic patient could come to the hospital’s emergency room for attention, as in the case of any person in need of immediate medical care.
Dr. Palmer then called Dr. Whaley on the telephone. After first identifying himself as the Executive Director of the BOME, and telling Dr. Whaley that the telephone call was personal in nature, Palmer told Whaley that his, Dr. Whaley’s, activities were not in his opinion illegal, but that his personal advice was that it might be in Whaley’s best interests to leave the clinic. Dr. Palmer thought that it was unwise for the young physician to get involved in something as controversial as the clinic. He pointed out that the aftercare arrangements were in his opinion' ’’questionable”, and that Dr. Whaley was running a risk of malpractice liability because he could not follow up on his patients at Tallahassee Memorial Hospital inasmuch as Whaley did not have staff privileges at Tallahassee Memorial, nor a Tallahassee or Leon County occupational license. Following his conversation with Dr. Whaley, Palmer called Dr. Mohammad to report his findings. On September 30, Dr. Palmer sent another investigator to the clinic to determine if the clinic, at that time, had a licensed physician performing abortions.
At the September 2, 1975 meeting of the OB-GYN Staff of Tallahassee Memorial, at which Drs. Crane, Curry, Griner, Messer, and Mohammad were present, the staff voted to send a letter to the residents at University Hospital in Jacksonville who were performing abortions at the clinic. The purpose of the communication was to inquire of the doctors whether proper aftercare was being provided for the patients on whom the doctors were performing abortions at the Tallahassee clinic. On September 10, a letter, signed by all the defendants with the exception of Dr. Palmer, was sent not to the residents but to Dr. Robert Thompson, the head of the residency program at University Hospital. The letter stated:
In the last monthly meeting of the OB-GYN Staff at Tallahassee Memorial Hospital, the subject of the Feminist Womens’ Health Clinic was brought up, and the fact that one or two of the residents from your program performed abortions without provision for possible complications and leave patients without provision for 24-hour coverage was discussed.
For your information, the Feminist Womens’ Health Center has no backup for abortions performed and there is no physician in town covering aftercare complications of procedures done.
Dr. Whaley returned to the clinic after Dr. Palmer’s call, but he told the Center that he could not work for them until the controversy was resolved. Dr. Whaley testified in his deposition that the aftercare problem was not the main reason that he left the clinic. His primary concern, he said, was the controversy between the clinic and the Tallahassee medical community. He ultimately left the clinic, he testified, because of the advice given him by several people.
Another of the residents at University Hospital in Jacksonville, Dr. Rhett, left the clinic in mid-September of 1975, following the staff’s communication to Dr. Thompson. According to Dr. Rhett’s deposition, he left the clinic because he could not get a straight answer from the clinic concerning its aftercare arrangements. He also testified that he felt threatened professionally by the controversy surrounding the Center.
The Center brought suit charging that the doctors had conspired to monopolize and restrain trade in the provision of abortions and related services, in violation of §§ 1 and 2 of the Sherman Act and § 542.05 of the Florida statutes. The Center also charged that the doctors had unlawfullyjnterfered with the Center’s contractual relations with its physicians. Following the GenterVTiling of the complaint, the Capitol-Medical Society passed a resolution, coauthoredrby Dr. Palmer, to support the defendq^its-dn the prosecution of this litigation. The-Genter, throughout this litigation, has citedJJie Capitol Medical Society’s resolution as the “consummation” of the alleged conspiracy. On June 9, 1976 the trial court denied the Center’s motion for a preliminary injunction. The court found that the plaintiff had demonstrated a substantial likelihood of prevailing on the merits of its claims against all defendants except Dr. Palmer, but that there was no likelihood that the Center would suffer irreparable harm pending adjudication of the cause. Feminist Womens’ Health Center v. Mohammad, 1976, N.D.Fla., 415 F.Supp. 1258. The court intimated, in that order, that the “state action” defense of Parker v. Brown, 1943, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, might be applicable to Dr. Palmer. In a pretrial order of September 3 the court granted Dr. Palmer’s motion for summary judgment. On December 3, the court rendered summary judgment in favor of the remaining defendants.
II
THE REACH OF THE SHERMAN ACT
At the outset we face the question whether the district court had subject matter jurisdiction of this action. Jurisdiction is predicated upon §§ 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26, which grant the federal district courts jurisdiction of private actions for treble damages and injunctive relief, respectively, to redress injuries resulting from violations of the federal antitrust laws. The appellees argue that subject matter jurisdiction is lacking because the action complained of does not have the effect on interstate commerce requisite to liability under the Sherman Act. If the Center has not stated a claim under the Sherman Act, then the federal court, of course, lacks jurisdiction of the pendent state law claims.
Section 1 of the Sherman Act outlaws every combination or conspiracy “in restraint of trade or commerce among the several States”. Section 2 of the Act prohibits monopolization of, and attempts and conspiracies to monopolize “any part of the trade or commerce among the several States.” It has been said that “this language defines both the prohibited conduct and the jurisdictional range of the statute.” Comment, 21 Vill.L.Rev. 721, 725 (1976); see also Rasmussen v. American Dairy Ass’n, 9 Cir. 1972, 472 F.2d 517, 521. The Supreme Court has construed the Sherman Act as reaching the full extent of the Congress’s power under the commerce clause. Whether the conduct complained of falls within the scope of the Sherman Act’s “jurisdiction” turns on whether it has or could likely have a substantial effect on interstate commerce. E. g., International Salt Co. v. United States, 1947, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; Lehrman v. Gulf Oil Corp., 5 Cir. 1972, 464 F.2d 26, cert, denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665.
The district court determined, after a full evidentiary hearing on the matter, that it had jurisdiction of the Center’s claims. The court made the following findings. (1) Tallahassee, Florida, where the clinic is located, is within 30-35 miles of the Georgia state line. (2) Tallahassee is a center for health care in the northern Florida-southwestern Georgia area. (3) From June 1974 to September 1976, 2,177 abortions were performed at the plaintiff’s clinic, 176 (or 8%) of which were performed on persons who came from outside the state of Florida. Abortions for out-of-state patients brought the plaintiff roughly $26,400 in gross receipts. (4) From June 1974 through April 1976 the Center received $562.00 in payments from out-of-state insurance companies for abortions performed at the clinic. (5) From June 1974 through September 1976 the Center made out-of-state purchases of $10,017.34 of supplies and equipment to be used in connection with the provision of abortion services. At least $9,845.34 of these supplies were purchased in the period of June 1974 to April 1976. (6) In that same period the Center purchased $15,-493.79 of supplies from within the state of Florida. (7) From June 1974 through July 1976 the Center spent $4,340.65 on interstate travel by its officers and employees. (8) From the Center’s inception, the volume of patients and the gross income of the clinic steadily increased. The district court found that the clinic had developed significant contacts with interstate activity, and that its interstate connections are likely to grow as the business grows. Taking the allegations of the complaint as true, the court concluded, the clinic and its interstate business were seriously threatened by the defendants’ actions.
The defendants do not quarrel with the district court’s findings of fact, but do contest its conclusion that the facts show a quantum of interstate involvement sufficient to sustain Sherman Act jurisdiction. They argue that the Center’s business is not converted into an interstate business by virtue of the clinic’s treatment of patients who travel from other states to use its services. Indeed, they seem to maintain that the flow of out-of-state patients must be ignored altogether. Once the interstate flow of patients is discounted, the physicians contend, the interstate connection is de minimis and certainly far more tenuous than any that has been held sufficient for Sherman Act purposes in any reported case. We disagree with both contentions; we hold that the district court did not err.
Although the mere fact of dealings with out-of-state customers, whether or not those customers cross state lines for the purpose of buying a firm’s goods or services, might not of itself establish a sufficient interstate nexus, it does not follow that those dealings are of no pertinence whatsoever. The Sherman Act reaches conduct that is likely to have a substantial adverse effect on interstate commerce, a question, as we have emphasized in prior decisions, that is to be determined from the aggregate of factors. St. Bernard General Hospital, Inc. v. Hospital Service Ass’n, 5 Cir. 1975, 510 F.2d 1121, 1125; Lehrman v. Gulf Oil Corp., 5 Cir. 1972, 464 F.2d 26, 48, cert, denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665. The plaintiff’s business with out-of-state patients is one of the factors to be considered. Were the Center forced to close the Tallahassee clinic, the flow of persons crossing state lines to avail themselves of the clinic’s services would cease. That the patients come to the plaintiff, and not the plaintiff to the patients, does not alter the interstate character of those transactions.
Looking to the aggregate of factors, including the clinic’s volume of out-of-state patients, we cannot say that the Center has failed to demonstrate a likelihood of substantial impact on interstate commerce. There is, of course, no ready and easy test for determining whether particular restraints have, or will likely have, the requisite effect on interstate commerce. As the Third Circuit Court of Appeals has observed, “the precedent in this area is unlikely to dictate the outcome in any given case. Instead, it is more likely to communicate a general sense as to how much of an impact local activities must have upon interstate commerce before they confer jurisdiction.” Doctors, Inc. v. Blue Cross of Greater Philadelphia, 3 Cir. 1973, 490 F.2d 48, 51. The interstate effects alleged here are well within the boundaries suggested by the “general sense” of our decisions on Sherman Act jurisdiction.
In Lehrman v. Gulf Oil Corp., 5 Cir. 1972, 464 F.2d 26, cert, denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665, this Court upheld jurisdiction in a case analogous to this one in its jurisdictional aspects. Lehrman was a private antitrust suit by a Gulf service station operator. Lehrman sought to recover damages that resulted from the effect on his business of Gulf’s wholesale pricing practices. He urged that Gulf's pricing policies, by preventing him from engaging in price competition with nearby competitors, forced him out of business. Although we assumed, for purposes of the appeal, that the gasoline sold by the plaintiff never moved in interstate commerce, we nevertheless held that Gulf’s conduct substantially affected interstate commerce. Two distinct and sufficient grounds for jurisdiction were set forth. First, we noted that Gulf’s pricing system affected dealers throughout the southwestern United States, many of whom, the evidence tended to show, did distribute gasoline that moved in interstate commerce. Thus the pricing system as a whole constituted a combination that substantially restrained interstate commerce. The alternative ground is of importance to this appeal. We pointed out that Lehrman sold not only gasoline, but also tires, batteries, and accessories, the largest part of which, unlike his gasoline, originated from outside the state of Texas. The termination of Lehrman’s business, we held, had an appreciable effect on the flow of tires, batteries, and accessories from outside Texas. We stated: “The effect was appreciable because, while small relative to total Gulf TBA sales, the gross amount of such sales would be significant over the extended period of time Lehrman might have been able to continue in business.” Id. at 35.
The case of Copper Liquor, Inc. v. Adolph Coors Co., 5 Cir. 1975, 506 F.2d 934 presented a similar situation. In Copper Liquor an owner of a retail liquor store sued the defendant brewing company complaining that the refusal of Coors’s local distributor to sell him Coors beer was part of a conspiracy to fix retail prices, and that his inability to secure the beer from other distributors was the consequence of an unlawful scheme of territorial market division. We upheld Sherman Act jurisdiction, pointing to evidence showing that the unavailability of Coors beer at the plaintiff’s retail store diminished customer demand for the plaintiff’s other products that did move in interstate commerce. Citing Lehrman, we observed: “This impact on other products has been held to have a sufficient effect on interstate commerce to bring the case within the federal antitrust laws.” Id. at 949.
The activities affected by the restraints alleged in this case have an interstate nexus at least as substantial as those involved in Lehrman and Copper Liquor, and those authorities therefore counsel affirmance of the district court’s ruling on jurisdiction. In Lehrman, jurisdiction was founded on the impact of Gulf’s activities upon the TBA items purchased and sold by a service station operator. That effect could hardly be more substantial than the cessation of the Center’s purchases of $4,000 or $5,000 worth of out-of-state supplies a year and of the clinic’s $12,000 worth of yearly business with out-of-state patients. The interstate nexus in Copper Liquor was even less substantial, for the plaintiff in that case did not contend, as the Center does here, that the challenged practices threatened to shut down his business, and with it his purchases of products in interstate commerce.
We conclude, from all the evidence adduced at the jurisdictional hearing before the district court, that the court ruled correctly. We recognize that there must be a limit on the reach of Sherman Act jurisdiction. This case, however, is within that limit.
Ill
THE MEMBERS OF THE OB-GYN STAFF
The district court granted summary judgment in favor of Drs. Mohammad, Curry, Crane, Knight, Griner, and Messer largely on the strength of the Noerr-Pennington doctrine. According to that doctrine, articulated in a line of Supreme Court decisions that began with Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 1961, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, efforts to influence the government to take anticompetitive action cannot be made the basis of antitrust liability. Noerr itself concerned efforts to achieve anticompetitive ends by securing legislative action. Succeeding court decisions established that antitrust immunity extends to attempts to influence executive and adjudicative governmental bodies as well. The Court has held that petitioning activity is protected “regardless of intent or purpose.” United Mine Workers v. Pennington, 1965, 381 U.S. 657, 670, 85 S.Ct. 1585, 14 L.Ed.2d 626. The petitioning activity, however, must be genuine. Protection does not extend to purported petitioning that is in fact “a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor....” Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 1961, 365 U.S. at 144, 81 S.Ct. 523, 533. Although the Court’s Noerr opinion suggested that petitioning activity is exempt because the Sherman Act was simply not designed to reach such conduct, it is now clear that the doctrine is rooted in the first amendment’s guarantee of the right to petition. See California Motor Transport Co. v. Trucking Unlimited, 1972, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642; see generally Fischel, Antitrust Liability for Attempts to Influence Government Action: The Basis and Limits of the NoerrPennington Doctrine, 45 U.Chi.L.Rev. 80 (1977).
The trial court held the following conduct to be of the type protected by the Noerr-Pennington defense: (1) The OB-GYN Committee’s letter to Dr. Palmer and the BOME; (2) the Committee’s letter to Dr. Thompson, the head of the residency program at the Jacksonville hospital; (3) the Committee’s communications to the Capitol Medical Society regarding the Center’s abortion clinic; and (4) the discussions among the members of the OB-GYN staffs of Tallahassee Memorial and the Jacksonville hospital regarding their members’ medical practice. Since these communications, in the district judge’s opinion, make up the core of the Center’s case against the physicians, he ruled that the fate of the action turned on whether the Center could bring it within the “sham” exception adumbrated in the Supreme Court’s Noerr opinion. Finding that the plaintiff had insufficient evidence that the defendants’ petitioning activities were sham, the court granted the defendants’ motions for summary judgment.
The foundation of the trial court’s ruling was its determination that the defendants’ communications were protected petitioning activity. We hold, however, that the communications, with the exceptions of the physicians’ letter of complaint to the BOME and their post-complaint activities in support of their position in this lawsuit, are as a matter of law unprotected by the NoerrPennington doctrine. In addition, a triable issue of fact remains as to whether the OB-GYNs’ letter of complaint to Dr. Palmer was but a sham effort to influence government action. The district court’s misapplication of the Noerr doctrine necessitates reversal of the judgment.
The Committee’s letter of complaint to Dr. Palmer is a form of activity that is protected by the Noerr-Pennington doctrine absent proof of sham. The Board of Medical Examiners is a creature of state law. Section 458.1201 of the Florida Statutes authorizes the Board to discipline licensed physicians found guilty of any of the violations defined by chapter 458. The defendant doctors wrote Dr. Palmer requesting him to investigate possible violations of the Medical Practice Act. Whether the doctors’ petition is immune from antitrust attack turns on the factual determination whether it was genuinely intended to influence Dr. Palmer to take official action in his capacity as Executive Director of the BOME. It is the jury’s task to resolve this issue.
We agree with the district court, however, that the Center cannot base a right to recovery on the actions of Dr. Palmer and the other members of the Capitol Medical Society in adopting a resolution to provide moral and financial support to the doctors’ defense of this lawsuit. The plaintiff Center characterizes the medical society’s resolution of support as the “consummation” of the alleged conspiracy. In California Motor Transport Co. v. Trucking Unlimited, 1972, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642, the Supreme Court held that joint efforts of competitors to seek adjudicative action are protected. The first amendment right of competitors to join in petitioning courts and administrative bodies entails the right to band together for purposes of supporting litigation, as the physicians in the Capitol Medical Society have done here. Whether the action of the medical society can be linked to the alleged conspiracy that spawned the Center's original complaint is irrelevant, for petitioning activity according to Pennington “is not illegal, either standing alone or as part of a broader scheme itself violative of the Sherman Act.” 381 U.S. at 670, 85 S.Ct. at 1593. The district court did not err in granting summary judgment in favor of the defendants on this issue. There is no genuine issue as to the physicians’ intent in adopting the resolution. It cannot be seriously urged that either the physicians’ defense of this lawsuit or the medical society’s resolution of support is a sham.
The district court’s determination that the other communications are protected rests on three statutes that, in its view, make the OB-GYN staffs and the Capitol Medical Society integral parts of the state’s apparatus for regulating the practice of medicine. Section 768.40 of the Florida Statutes immunizes “medical review committees”, such as local societies of health care providers and the medical staffs of licensed hospitals, from liability arising out of their actions taken in the course of evaluating the performance of health care providers. The statutes contemplate committees that concern themselves with the quality and cost of medical services rendered by providers. Section 395.065 authorizes the medical staff of licensed hospitals “to suspend, deny, revoke, or curtail the staff privileges of any staff member for good cause”. The statute enumerates a few nonexclusive grounds constituting “good cause” and immunizes the hospital, staff, and staff members from liability arising out of actions taken in good faith in carrying out the staff’s disciplinary function. Section 458.-1201, the statute setting forth the disciplinary powers of the BOME, authorizes the Board to impose penalties on licensed physicians who have been disciplined by a peer review association or a hospital medical staff, and requires such organizations to report all disciplinary actions to the BOME. § 458.1201(l)(p). The court felt that these statutes, in effect, make the OB~ GYN staffs and the Capitol Medical Society public regulatory bodies, and that the discussions at the OB-GYN Committee meetings and the Committee’s letters to the Jacksonville OB-GYN’s and the medical society were therefore protected solicitation of government action..
The defendants’ claim of Noerr protection, in our view, rests ultimately on § 458.1201. Section 768.40 does not recruit medical review committees into government service. The sole purpose of that provision is to confer limited immunity upon the actions of review committees within the scope of their functions, as defined by subsection (1) of § 768.40, and to bar the use of committee records and proceedings as evidence in civil actions. Section 395.065 recognizes the existence of hospital staff self-regulation, imposes a “good cause” limitation on disposition of staff privileges, and insulates good faith disciplinary action from civil liability. This falls short of conferring governmental status upon hospital medical staffs. Section 458.1201, however, affords a colorable basis for the defendants’ claim. The statute, by enabling the BOME to take disciplinary action against physicians who have been disciplined by medical review organizations, vests those organizations with a kind of quasi-legislative authority. The appellees’ strongest argument for Noerr protection is that communications between a review organization and its members looking towards possible disciplinary action constitutes the solicitation of action that, in the event it became the basis of BOME disciplinary action, would be legislative in character.
We are not persuaded, however, that § 458.1201 makes medical review organizations public regulatory bodies. The contention that § 458.1201 incorporates the disciplinary actions of such organizations into regulatory law is weakened by the statute’s permissive language. Subsection (1) does not require the BOME to take action against physicians disciplined by private professional groups; it merely authorizes the Board to do so. Subsection (3)(a) of the statute simply provides that the Board “may enter an order” penalizing physicians who are found to have violated the statute. Thus the Board is given broad discretion to decline to take action against physicians. Where the legislature, in § 458.1201, intended to command a certain course of action, it made its intentions quite clear by using the word “shall”. As we read the statute, disciplinary action by a medical peer group affords grounds for Board action but in no way binds the Board to act. Thus, ultimate authority to enact and enforce professional standards and to adjudicate violations of law rests with the Board. Hospital medical staffs and medical societies play an important role in Florida’s regulatory scheme, but that role is not a governmental one. Although the actions of such groups in reporting disciplinary findings and suspected violations to the BOME may be petitioning activity within the meaning of the first amendment, communications within those groups are not.
Evaluating the evidentiary materials on file in light of our ruling on the availability of the Noerr-Pennington defense, we conclude that there are triable issues of fact. The district court itself in granting summary judgment recognized that, absent the Noerr issue, “the evidence might allow sufficient inferences to submit the case to a jury for decision.” The appellants’ primary argument in support of summary judgment is that the inferences raised by the Center’s pleadings and evidentiary materials cannot stand in the face of contrary evidence that the doctors were motivated solely by concern for the welfare of the clime’s abortion patients. They rely on our
Question: What is the number of judges who concurred in the result but not in the opinion of the court?
Answer:
|
songer_opinstat
|
B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
LONDON v. NORFOLK & W. RY. CO. (two cases).
Nos. 4619, 4620.
Circuit Court of Appeals, Fourth Circuit.
April 13, 1940.
James J. Laughlin, of Washington, D. C., for appellant.
R. Carter Scott, Jr., of Richmond, Va., for appellee.
Before PARKER, DOBIE, and NORTH-COTT, Circuit Judges.
PER CURIAM.
Motion to dismiss the appeals in these cases will be denied. The orders dismissing the cases will be affirmed, however, on the ground that since the defendant is a Virginia corporation, having its principal office in the Western District of Virginia, it is not suable, over its objection, in the Eastern District of that State, diversity of citizenship being the sole ground of jurisdiction. The recent case of Neirbo Co. et al. v. Bethlehem Shipbuilding Corporation, 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. -, is not a holding to the contrary. That case involved suit against a corporation of another state which had appointed an agent within the state of suit to accept service of process. The suits here were instituted against a domestic corporation and no question of consent to suit was involved. Not having been instituted in the District in which defendant had its principal office, they were properly dismissed. Judicial Code, sections 51 and 52, 28 U.S.C. A. §§ 112 and 113; Galveston, etc., R. Co. v. Gonzales, 151 U.S. 496, 14 S.Ct. 401, 38 L.Ed. 248; Dobie on Federal Procedure p. 482; Simpkins Federal Practice p. 371. The effect of the Neirbo case is merely to permit suit against a corporation in a federal district in which it has appointed an agent to accept service of process, and in which, if sued in a state court, it might remove to a federal court. No such right of removal exists in diversity of citizenship cases if a corporation be sued in a court of the state of its residence. Judicial Code, § 28, 28 U.S.C.A. § 71. If plaintiff desires to sue in a federal court of that state the provisions of the venue statute must be followed, as in such case there is no appointment of a process agent upon which waiver of such provisions can be predicated.
Affirmed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_direct1
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine 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.
COMMERCIAL UNION INSURANCE COMPANY, Defendant, Appellant, v. Jose GONZALEZ RIVERA et al., Plaintiffs, Appellees.
No. 6613.
United States Court of Appeals First Circuit.
March 25, 1966.
C. A. Romero Barcelo, San Juan, P. R., with whom Seguróla, Romero & Toledo, San Juan, P. R., was on brief, for appellant.
P. Fernandez Cuyar, San Juan, P. R., with whom Rafael A. Gonzalez, J. Cor-dova Rivera and J. Cordova Mercado, Arecibo, P. R., were on brief, for appel-lees.
Before ALDRICH, Chief Judge, and MARIS and McENTEE, Circuit Judges.
Sitting by designation.
McENTEE, Circuit Judge.
This is a diversity suit for damages based on negligence of the defendant’s insured as a result of which plaintiff, Don Jose Gonzalez Rivera, was injured. The evidence shows that on December 27, 1963, Don Jose, while walking along a certain sidewalk in Arecíba, Puerto Rico, slipped and fell on a greasy and slippery substance which the defendant’s insured had negligently deposited on or had allowed to flow and accumulate on said sidewalk. The foreign substance consisted of used lard and other greasy residues from insured’s nearby hamburger and hot dog stand, which -insured’s employees had deposited on a vacant lot near that part of the sidewalk where Don Jose slipped and fell.
Plaintiff, Don Jose, claims that the negligence of the defendant’s insured was the proximate cause of his fall; that as a result of this fall he sustained serious permanent injuries, including brain damage which required extensive surgery, severe pain and suffering, and also sustained a substantial loss of earnings and the loss of his business.
In the same action his wife made claim against the defendant for loss of companionship and consortion and for mental pain and suffering. Plaintiff Don Jose’s four children, Luz Selenia, Rafael, Jose and Gladys Gonzalez, all of legal age at the time of trial, also joined in the suit, making claim for their mental pain and suffering as a result of their father’s injuries. None of these children lived with or were dependent upon the plaintiff Don Jose, for support.
The court originally assigned this case for trial by a jury to July 20, 1965, but on April 9, 1965, advanced the trial date to May 4, 1965. A few days before trial the defendant moved for a continuance on the ground that it did not have sufficient time to prepare its case properly for trial on May 4th. The court denied the motion. This motion was renewed on the opening day of the trial and was again denied. After a trial on the merits, the jury returned a verdict for the plaintiffs and assessed their damages as follows: $37,'500 for Don Jose; $15,-000 for his wife; $12,500 for Luz Se-lenia and $7,500 each for the other three children.
Defendant’s first assignment of error is that the trial court erred in denying its motion for a continuance. Such motions are addressed to the sound discretion of the court and a trial court’s refusal to grant a continuance will not be disturbed on appeal unless abuse of discretion is shown. Grunewald v. Missouri Pacific Railroad Company, 331 F. 2d 983, 986 (8th Cir. 1964); McDonnell v. Tabah, 297 F.2d 731, 733 (2d Cir. 1961).
As to defendant’s contention that it did not have enough time to prepare properly for trial on May 4, 1965, we note that the complaint in this case was filed on August 5, 1964, and answered on October 16, 1964. Defendant then waited nearly five months before initiating its discovery process. Thereafter, more than forty days elapsed before the defendant filed its interrogatories. It is apparent, therefore, that the defendant had ample time to prepare properly for trial on May 4, 1965, and we cannot say the trial court abused its discretion in denying defendant’s motions for a continuance.
The primary question raised by this appeal is whether the children of the injured plaintiff have a cause of action under Puerto Rican law to recover damages for their mental or moral suffering as a result of the injuries sustained by their father. It is well settled that the legal source of tort liability in Puerto Rico is Section 1802 of the Civil Code which, insofar as it is applicable to this case, reads as follows: “A person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done. * * * ” 31 L.P.R.A. § 5141.
It-is undisputed that children may recover damages for mental suffering and anguish in cases involving the wrongful death of a parent. See Matilde Colon vda. Davila et al. v. P. R. Water Resources Authority, No. R-62-93, Supreme Court of Puerto Rico, May 7, 1964 (not yet officially reported in English). The defendant claims that such damages are not recoverable hi personal injury cases where death has not resulted, However, in a recent case decided by the Supreme Court of Puerto Rico, Santiago Perez Gonzalez et al. v. Manuel Vazqueztell Perez et al., No. 443, September 28, 1962 (not yet officially reported in English), the court affirmed judgments in favor of a father, his wife and two sons and a daughter in circumstances identical to those in the instant case, where the father had suffered personal injuries but not death. See also Ramon Merced et al. v. Government of The Capital of Puerto Rico et al., 85 P.R.R. 530 (1962), where the Supreme Court permitted parents to recover damages for mental suffering caused by injuries to their child.
Moreover, we do, not accept the distinction made by the defendant between wrongful death cases and personal injury cases insofar as resultant mental suffering and anguish of sons and daughters are concerned. It is- obvious that a severe personal injury to a father, resulting in lifetime disability such as paralysis or brain- damage, can often cause more intense and enduring mental anguish and suffering to his son or daughter than would his death. Neither Section 1802 nor the Puerto Rico decisions appear to limit the right to recover damages for mental suffering to death cases only. Under the broad, general language of Section 1802, (“A person who * * * causes damage to another,’’) it is for the Puerto Rican courts to determine on a case to case basis what interests are entitled to juridical protection. The case law in this regard “has already assumed a sufficiently clear and definite position which follows the more 'liberal and at the same time the more just aspects of the doctrine.” Correa v. P. R. Water Resources Authority, 83 P.R.R. 139, 143 (1961). The court went on to say at p. 153: “ * * * we are not inclined to establish as a general rule of law — with complete abstraction of the facts and circumstances involved in each case — a re-strictual and exclusive criterion as to who may claim within the juridical scope of said section.” [1802]
From a review of the Correa decision and the other cases cited herein, it is clear that under Puerto Rican law the sons and daughters of the plaintiff, Don Jose, who was injured as a result of the wrongful act of the defendant, have a right of action for mental suffering, anguish and anxiety caused to them by reason of their father’s injuries. In other words, sons and daughters have a sufficiently close relationship to . their injured father to come within the scope of the term “another” as used in Section 1802; and their resulting mental pain, suffering and anguish are recognized as an element of damages. Correa v. P. R. Water Resources Authority, supra, at 148; Vazquez v. People, 76 P.R.R. 556 (1954); Travieso v. Del Toro, 74 P.R.R. 940 (1953).
As a further argument in support of their contention that these sons and daughters cannot recover, defendant claims that such awards are contrary to the specific terms of its insurance policy. The obligation of the insurer here is to pay ail sums the insured shall become legally obligated to pay as damages. It is admitted that the insured is legally obligated to pay compensation to the plaintiff, Don Jose, and to his wife for injuries suffered by said plaintiff, and under our holding in this case and the cases cited herein, is also legally obligated to pay compensation to the sons and daughters as well. It has been held that an insurance policy obligating the insurer to pay any loss for liability for bodily injuries also includes liability for consequential damages. See 8 Apple-man, Insurance Law and Practice, § 4893 (1962); United States Fidelity & Guaranty Co. v. Shrigley, 26 F.Supp. 625, 628 (W.D.Ark.1939).
Nor do we find any merit in the defendant’s claim that the damages awarded to the sons and daughters were excessive. The reasonableness of these awards was challenged before the trial court in defendant’s motion for a new trial which was denied. It is well settled that “the question of excessiveness of a verdict is primarily for the trial court, and its determination thereof will not be reversed on appeal except for manifest abuse of discretion.” Dubrock v. Interstate Motor Freight System, 143 F.2d 304, 307 (3d Cir. 1944). We are reluctant to overturn jury verdicts on the ground of excessiveness, since the trial court has had the benefit of hearing the testimony and of observing the demeanor of the witnesses and also knows the community and its standards. Solomon Dehydrating Company v. Guyton, 294 F.2d 439, 447 (8th Cir. 1961). The record indicates that the sons and daughters here suffered much more than mere transient or passing sorrow as eon-tended "by the defendant. We cannot say the trial court abused its discretion in upholding the verdicts in their favor.
Defendant also contends that the trial court erred in instructing the jury to make an award for loss of earnings. It claims that there is not sufficient evidence to warrant any award to Don Jose for such loss. The record does not support this contention. The plaintiff, Don Jose, testified that prior to the accident he was an established merchant in Arecibo, where he operated a profitable vegetable and grocery business for more than twenty-five years; that just before the accident his gross income was about $175 to $200 per week; that he has been.junable to return to work and could not continue his business because of the accident; that in his absence so much money was lost that the business had to be liquidated; and that at the time of the trial his only income was derived from social security payments. His wife also testified that prior to the accident, Don Jose paid all the expenses •of the household and that his business establishment had to be sold while he was in the hospital. Finally, there was medical testimony that Don Jose was in good health before the accident and that his complaints of headaches, dizzy spells and inability to concentrate and pursue his occupation after the accident were justified. Such being the state of the record, the district court properly instructed the jury to consider the plaintiff’s loss of earnings and future loss of earnings in making an award. We do not agree wtih the defendant’s contention that the evidence enumerated above was insufficient and that absent more precise data on plaintiff’s earnings, the jury could only speculate.
The plaintiff was not required to offer his books and records into evidence to prove loss, Christian v. The Hertz Corporation, 313 F.2d 174, 175 (7th Cir. 1963), and his loss of wages, although an approximation thereof, was competent evidence to aid the jury in arriving at a fair and just award. Cf. Phoenix Indemnity Co. v. Givens, 263 F.2d 858, 863 (5th Cir. 1959).
All other points raised by the defendant have been considered and have been found to be without merit.
Affirmed.
. As a result of his accident, Don Jose incurred medical, special nursing, and hospital expenses of $4,220.80, which were paid by his daughter, Luz Selenia.
. Defendant claims it did not learn of a second fall sustained by the plaintiff on February 4, 1964 in his doctor’s office, until after it received plaintiff’s answers to its interrogatories a few days before the trial and did not have sufficient time to investigate the causal relationship of said fall to the alleged injuries. Also that it did not have sufficient time before trial to have certain psychometric tests performed on the plaintiff in order to properly evaluate his condition after the accident.
. In wrongful death eases the Supreme Court of Puerto Rico has extended recovery under Section 1802' to other persons who are not as closely related to the deceased. See Correa v. P. R. Water Resources Authority, 83 P.R.R. 139 (1961) (concubines); Andres Cirino etc. v. P. R. Water Resources Authority, R-63-70 December 29, 1964 (not yet officially reported in English) (brothers and sisters).
. “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.”
. Dr. de Ohoudens, who performed the brain surgery on the plaintiff, testified that in spite of all surgery and treatments the plaintiff’s dizziness, headaches, poor memory and nervousness had not disappeared and his physical activity and tolerance for emotional stress was very low.
. It should be noted here that the trial court specifically instructed the jury that they were not permitted to award speculative damages.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_lcdispositiondirection
|
A
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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
DARR v. BURFORD, WARDEN.
No. 51.
Submitted December 5, 1949. —
Decided April 3, 1950.
John B. Ogden submitted on brief for petitioner.
Mac Q. Williamson, Attorney General of Oklahoma, and Sam H. Lattimore, Assistant Attorney General, submitted on brief for respondent.
[Mr. Justice Jackson also joined in this opinion. See post, p. 238.]
Mr. Justice Reed
delivered the opinion of the Court.
Petitioner Darr, an inmate of the Oklahoma state penitentiary, has been denied federal habeas corpus for failure to exhaust his other available remedies. Petitioner’s omission to apply here for certiorari from the state court’s denial of habeas corpus was held an error, fatal to consideration on the merits. Therefore the merits of petitioner’s claims of imprisonment in violation of the Constitution are not before us. The petition for certiorari requires us to pass solely upon the correctness of the lower court’s view that ordinarily a petition for certiorari must be made to this Court from a state court’s refusal of collateral relief before a federal district court will consider an application for habeas corpus on its merits.
Petitioner was serving a term in the Oklahoma state penitentiary when, on November 28, 1930, he was summoned to appear in another Oklahoma county to plead to two separate charges of armed bank robbery. In January of 1931, he was tried by jury, and convicted on the first charge; petitioner then pleaded guilty to the second. He was sentenced to two terms of forty years each, to run consecutively, and the first sentence is now being served. No appeal from the conviction was taken, but in 1947 petitioner applied to the Oklahoma Court of Criminal Appeals for habeas corpus. Judging only from the state court’s opinion, for the original petition is not included in the record before us, petitioner alleged in the state court that he had been without funds to employ counsel, that he had not had the aid of counsel of his own choosing, and had not been provided sufficient time to procure and prepare witnesses for his defense. These allegations were reviewed by the state court and the writ was denied on the merits. No application for certiorari was made here.
Petitioner then filed in the United States District Court for the Eastern District of Oklahoma the application for habeas corpus here at bar. The allegations were those passed upon by the Oklahoma Court of Criminal Appeals, with the addition of a claim that petitioner’s plea of guilty to the second armed robbery charge had been coerced. After hearing petitioner’s testimony in open court, the District Judge examined into the merits sufficiently to assure himself that no extraordinary circumstances existed sufficient to justify federal inquiry into the merits of petitioner’s allegations without the exhaustion of all other available remedies. He then concluded that the writ must be discharged as to the first sentence since petitioner had not applied for certiorari here from the state court’s denial of habeas corpus. The allegations of a coerced plea underlying the second sentence could not properly be considered, held the court, first, because petitioner had not raised the point in the state proceeding, and further because petitioner is not presently being detained under that sentence. Therefore no adjudication on the merits was given. The Court of Appeals for the Tenth Circuit affirmed, one judge dissenting from the proposition that application for certiorari is a requisite step in the exhaustion of remedy.
It is not argued that the courts below state the law incorrectly insofar as the second conviction is concerned. It has long been settled that the federal courts will not consider on habeas corpus claims which have not been raised in the state tribunal; and in any event, it is unquestioned doctrine that only the sentence being served is subject to habeas corpus attack. Further, since neither court based its conclusion upon petitioner’s failure to appeal from his initial conviction, that issue is not before us. There is no problem of jurisdiction or power in the federal courts to consider applications for habeas corpus. Nor is there at issue the effect of a refusal of certiorari by this Court upon future applications for federal habeas corpus by the state prisoner. The issue of exhaustion of remedy, however, is not only of vital concern to those who would seek the protection of the Great Writ, but in the case of state prisoners is crucial to the relationship between the state and federal sovereignties in the exercise of their coordinate power over habeas corpus. Doubt respecting this issue should not go unresolved. We therefore granted certiorari. 337 U. S. 923.
The writ of habeas corpus commands general recognition as the essential remedy to safeguard a citizen against imprisonment by State or Nation in violation of his constitutional rights. To make this protection effective for unlettered prisoners without friends or funds, federal courts have long disregarded legalistic requirements in examining applications for the writ and judged the papers by the simple statutory test of whether facts are alleged that entitle the applicant to relief.
This favorable attitude toward procedural difficulties accords with the salutary purpose of Congress in extending in 1867 the scope of federal habeas corpus beyond an examination of the commitment papers under which a prisoner was held to the “very truth and substance of the causes of his detention.” Through this extension of the boundaries of federal habeas corpus, persons restrained in violation of constitutional rights may regain their freedom. But, since the 1867 statute granted jurisdiction to federal courts to examine into alleged unconstitutional restraint of prisoners by state power, it created an area of potential conflict between state and federal courts. As it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, the federal courts sought a means to avoid such collisions. Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.
Since habeas corpus is a discretionary writ, federal courts had authority to refuse relief as a matter of comity until state remedies were exhausted. Through this comity, the doctrine of exhaustion of state remedies has developed steadily from cases refusing federal habeas corpus before state trial to a statutory direction that federal courts shall not grant the writ to a state prisoner until state remedies have been exhausted. Ex parte Royall, decided in 1886, held that a federal district court had jurisdiction to release before trial a state prisoner who was held in violation of federal constitutional rights, but it approved denial of the writ as a matter of discretion. It was not to be presumed that “the decision of the State court would be otherwise than is required by the fundamental law of the land, or that it would disregard the settled principles of constitutional law announced by this court....” Analogy was found in earlier cases where state and federal jurisdiction to attach property had been found to overlap. Apropos were the words of the Court in Covell v. Heyman:
“The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between State courts and those of the United States, it is something more. It is a principle of right and of law, and therefore, of necessity.”
In the same term of court the doctrine was advanced to its next stage, for in Ex parte Fonda the prisoner sought his federal relief in this Court after his state conviction but before he had prosecuted his appeal to the state appellate tribunal. Stressing the importance of noninterference with the orderly processes of appellate review, this Court denied the writ, for if the trial court had erred to the prejudice of petitioner’s constitutional rights, it could not be assumed that the state appellate court would suffer the error to go uncorrected.
The established doctrine was applied to meet the variations presented by the eases. By 1891, it was clear that a federal circuit court committed no error in refusing a writ on the ground that the petitioner had not come to this Court on writ of error; and a great body of cases affirmed this holding that the petitioner should be “put to his writ of error.” Baker v. Grice states the reason for the rule that after a final determination of the case by the state court, the federal courts will even then generally leave the petitioner to his remedy by writ of error from this Court.
“... It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court and subject to its laws may, by the decision of a single judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the State and finally discharged therefrom, and thus a trial by the state courts of an indictment found under the laws of a State be finally prevented.”
And to this the Court added, in Markuson v. Boucher, the explicit reason why the exhaustion principle must extend to remedies available in this Court as well as those open in the state tribunals.
“The jurisdiction is more delicate, the reason against its exercise stronger, when a single judge is invoked to reverse the decision of the highest court of a State in which the constitutional rights of a prisoner could have been claimed....”
In 1913, a petitioner was denied an original writ here even though he had appealed and had applied for state habeas corpus, with the comment that writ of error to this Court was required. And following next upon the heels of an adjudication that a state habeas corpus action is a “suit” yielding a final reviewable judgment, came the leading case of Mooney v. Holohan clearly establishing the rule that available collateral attacks in the state tribunals must be exhausted in addition to direct attacks on the conviction. In 1944 the unanimous per curiam opinion of Ex parte Hawk stated the fully developed and established exhaustion doctrine in its most frequently quoted form.
“Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted.”
The doctrine of Ex parte Hawk has been repeatedly approved, and in White v. Ragen the same Court again unanimously restated that principle in the clearest language.
“Where the highest state court in which a decision could be had considers and adjudicates the merits of a petition for habeas corpus, state remedies, including appellate review, are not exhausted so as to permit the filing of a petition for habeas corpus in a federal district court, unless the federal question involved is presented to this Court on certiorari or appeal from the state court decision.”
Thus comity, which had constrained the lower federal courts to refuse a grant of the Great Writ when remedies in state courts were still open, brought forth the related rule that lower federal courts ordinarily will not allow habeas corpus if the applicant has not exhausted his remedy in this Court by certiorari or appeal from state courts’ refusal of relief on collateral attack.
In Wade v. Mayo alone, a case decided less than four years later, does there appear language that may be construed as a departure from the established rule. The District Court was allowed to hear Wade’s petition for habeas corpus even though he had not applied here for certiorari, because there was grave doubt whether the state judgment constituted an adjudication of a federal question. The Court said, at p. 682:
“That doubt was such as to make it reasonably certain that this Court would have denied certiorari on the theory that an adequate state ground appeared to underlie the judgment. His failure to make this futile attempt to secure certiorari accordingly should not prejudice his subsequent petition for habeas corpus in the District Court.”
We had pointed out in White v. Ragen, supra, a per curiam expressly reiterating the Hawk doctrine, that where a state court’s “decision is based upon some other adequate non-federal ground, it is unnecessary for the petitioner to ask this Court for certiorari in order to exhaust his state remedies, since we would lack jurisdiction to review the decision of the state court.”
Not limiting its discussion to the holding on the Hawk exception, however, Wade also treated with the general Hawk rule of the necessity for review here before seeking the writ in the federal district court. The thought behind the language on that point evidently was that review here is not usually required as a condition to a hearing on the merits in the district court. Wade did recognize that failure to come here might be relevant in determining whether a district court should entertain an application. On p. 680 it is said:
“After state procedure has been exhausted, the concern is with the appropriate federal forum in which to pursue further the constitutional claim. The choice lies between applying directly to this Court for review of the constitutional issue by certiorari or instituting an original habeas corpus proceeding in a federal district court. Considerations of prompt and orderly procedure in the federal courts will often dictate that direct review be sought first in this Court. And where a prisoner has neglected to seek that review, such failure may be a relevant consideration for a district court in determining whether to entertain a subsequent habeas corpus petition.”
We do not stop to reexamine the meaning of Wade’s specific language. Whatever deviation Wade may imply from the established rule will be corrected by this decision.
Ex parte Hawk prescribes only what should “ordinarily” be the proper procedure; all the cited cases from Ex parte Royall to Hawk recognize that much cannot be foreseen, and that “special circumstances” justify departure from rules designed to regulate the usual case. The exceptions are few but they exist. Other situations may develop. Compare Moore v. Dempsey, 261 U. S. 86. Congress has now made statutory allowance for exceptions such as these, leaving federal courts free to grant habeas corpus when there exist “circumstances rendering such [state] process ineffective to protect the rights of the prisoner.” 28 U. S. C. § 2254.
In § 2254 of the 1948 recodification of the Judicial Code, Congress gave legislative recognition to the Hawk rule for the exhaustion of remedies in the state courts and this Court. This was done by embodying in the new statute the rulings drawn from the precedents. The rulings had been definitively restated in Hawk. That case had represented an effort by this Court to clear the way for prompt and orderly consideration of habeas corpus petitions from state prisoners. This Court had caused the Hawk opinion to be distributed to persons seeking federal habeas corpus relief from state restraint and the opinion had been generally cited and followed. There is no doubt that Congress thought that the desirable rule drawn from the existing precedents was stated by Hawk, for the statutory reviser’s notes inform us that
“This new section is declaratory of existing law as affirmed by the Supreme Court. (See Ex parte Hawk, 1944, 64 S. Ct. 448, 321 U. S. 114, 88 L. Ed. 572.)”
While this section does not refer expressly to the requirement for application to this Court for review, it must be read in the light of the statement quoted on p. 207, supra, from Hawk. So read, there was occasion neither for the draftsmen of § 2254 to make reference to review in this Court, nor for the committees of the House or Senate or members of Congress to comment upon it. It is immaterial whether as a matter of terminology it is said that review in this Court of a state judgment declining relief from state restraint is a part of the state judicial process which must be exhausted, or whether it is said to be a part of federal procedure. The issue cannot be settled by use of the proper words. Hawk treated review here as a state remedy. Wade thought it was not state procedure. But undoubtedly review here is a part of the process by which a person unconstitutionally restrained of his liberty may secure redress. Ex parte Hawk had made it clear that all appellate remedies available in the state court and in this Court must be considered as steps in the exhaustion of the state remedy in the sense that the term is used, perhaps inexactly, in the field of habeas corpus. Consideration of the legislative history of § 2254 reveals no suggestion that the draftsmen intended to alter the sense of the term as defined in Hawk or to differentiate between exhaustion of state remedies and review in this Court. All the evidence manifests a purpose to enact Hawk into statute. The reviser’s notes, explicitly stating this purpose, remained unchanged throughout the bill’s legislative progress. So did the statement of the exhaustion principle contained in the first paragraph of § 2254 down to the first “or.” None of the changes or additions made by the Senate to § 2254 affected the problem of review here. They were directed at other issues.
It seems sure that Congress drafted and enacted § 2254 expecting review here in conformity with the Hawk rule. Nothing indicates to us a desire on the part of Congress to modify the language. We think the rule of the Hawk case that ordinarily requires an effort to obtain review here has been accepted by Congress as a sound rule to guide consideration of habeas corpus in federal courts.
There is an insistence voiced by the dissent that we determine what effect the lower federal courts should accord a denial of certiorari by this Court when the state prisoner later applies for federal habeas corpus. The issue of the effect of such a denial apparently could arise only in a case where, after our refusal, the state prisoner presented his application to another federal court. It is not here in this case. We doubt the effectiveness of a voluntary statement on a point not in issue. Whether a refusal to grant certiorari imports an opinion on any issue or not, the reason persists for requiring an application here from the state refusal before application to another federal court.
There should be no controversy over whether the refusal of certiorari “would serve the purpose of an adjudication on the merits.” All the authorities agree that res judicata does not apply to applications for habeas corpus. The courts must be kept open to guard against injustice through judicial error. Even after this Court has declined to review a state judgment denying relief, other federal courts have power to act on a new application by the prisoner. On that application, the court may require a showing of the record and action on prior applications, and may decline to examine further into the merits because they have already been decided against the petitioner. Thus there is avoided abuse of the writ by repeated attempts to secure a. hearing on frivolous grounds, and repeated adjudications of the same issues by courts of coordinate powers.
In this way the record on certiorari in this Court is brought to the attention of the trial court. There have been statements made in former opinions of this Court as to the effect of denial of petitions for habeas corpus. Records presented to this Court on petitions in habeas corpus cases raise many different issues. There may be issues of state procedure, questions of fact regarding the alleged violations of constitutional rights, and issues of law respecting the scope of constitutional rights — problems made difficult by the frequent practice of state courts to dismiss the applications without opinion. If this Court has doubts concerning the basis of state court judgments, the matter may be handled as in Burke v. Georgia, 338 U. S. 941, with an express direction that the petitioner may proceed in the federal district court without prejudice from the denial of his petition for certiorari. If the District Court feels that error may have occurred, it has power to examine the application to see if circumstances exist to justify it in holding a hearing on the merits. Such freedom of action protects the Great Writ without trivializing it.
But it is argued that if the denial of certiorari mean nothing, the result of our decision is to force a “meaningless step.” We do not agree. Though our denial of certiorari carry no weight in a subsequent federal habeas corpus proceeding, we think a petition for certiorari should nevertheless be made before an application may be filed in another federal court by a state prisoner. The requirement derives from the basic fact that this republic is a federation, a union of states that has created the United States. We have detailed the evolution of and the reason for the conclusion that the responsibility to intervene in state criminal matters rests primarily upon this Court. It is this Court which ordinarily should reverse state court judgments concerning local criminal administration. The opportunity to meet that constitutional responsibility should be afforded. Even if the District Court may disregard our denial of certiorari, the fact that power to overturn state criminal administration must not be limited to this Court alone does not make it less desirable to give this Court an opportunity to perform its duty of passing upon charges of state violations of federal constitutional rights. This Court has evolved a procedure which assures an examination into the substance of a prisoner’s protest against unconstitutional detention without allowing destructive abuse of the precious guaranty of the Great Writ. Congress has specifically approved it. Though a refusal of certiorari have no effect upon a later application for federal habeas corpus, a petition for certiorari here ordinarily should be required.
The answer to petitioner’s argument that he should not be required to seek review here from a state’s refusal to grant collateral relief before applying to other federal courts involves a proper distribution of power between state and federal courts. The sole issue is whether comity calls for review here before a lower federal court may be asked to intervene in state matters. We answer in the affirmative. Such a rule accords with our form of government. Since the states have the major responsibility for the maintenance of law and order within their borders, the dignity and importance of their role as guardians of the administration of criminal justice merits review of their acts by this Court before a prisoner, as a matter of routine, may seek release from state process in the district courts of the United States. It is this Court’s conviction that orderly federal procedure under our dual system of government demands that the state’s highest courts should ordinarily be subject to reversal only by this Court and that a state’s system for the administration of justice should be condemned as constitutionally inadequate only by this Court. From this conviction springs the requirement of prior application to this Court to avoid unseemly interference by federal district courts with state criminal administration.
As the Hawk requirement, we think, has always been the rule, no change in procedure is necessary and the reiteration of the rule in this decision can, of course, result in no shifting of the burden of work among federal courts. No person restrained by state process could heretofore have been certain of a hearing on the merits of his application to a federal district court unless he had sought review in this Court of the state’s refusal to release him. Further, the rule contributes toward expeditious administration, since it raises the constitutional issue in a federal forum immediately, without the necessity of a second trial court proceeding and the compilation of a second record. And while the rule has the merit of reasonable certainty, it does not err on the side of unreasonable rigidity. Flexibility is left to take care of the extraordinary situations that demand prompt action. Solicitous as we are that no man be unconstitutionally restrained and that prompt, certain and simple methods for redress be available, those ends for which modern habeas corpus has been evolved can best be achieved by requiring in ordinary cases the exhaustion of state remedies and review here.
The present case involves a refusal, on the merits, of state collateral relief from a conviction allegedly obtained in violation of the Constitution. No review was sought in this Court of the state’s refusal. Instead, without alleging that review had been sought in this Court and without reliance upon any pleaded facts to excuse such failure, the petitioner filed his application for this habeas corpus in the District Court. Limiting its consideration of the application solely to the question as to whether this was an extraordinary instance that required disregard of accustomed procedure, the District Court found that this was not a case of peculiar urgency. We agree with the lower court’s conclusion that it should go no further into consideration of the application. A conviction after public trial in a state court by verdict or plea of guilty places the burden on the accused to allege and prove primary facts, not inferences, that show, notwithstanding the strong presumption of constitutional regularity in state judicial proceedings, that in his prosecution the state so departed from constitutional requirements as to justify a federal court’s intervention to protect the rights of the accused. The petitioner has the burden also of showing that other available remedies have been exhausted or that circumstances of peculiar urgency exist. Nothing has been pleaded or proved to show that here exceptional circumstances exist to require prompt federal intervention. Oklahoma denied habeas corpus after obviously careful consideration. If that denial violated federal constitutional rights, the remedy was here, not in the District Court, and the District Court properly refused to examine the merits.
Affirmed.
Me. Justice Douglas took no part in the consideration or decision of this case.
Ex parte Darr, 84 Okla. Cr. 352, 182 P. 2d 523.
77 F. Supp. 553, 556.
77 F. Supp. 553.
172 F. 2d 668 (C. A. 10th Cir.).
Davis v. Burke, 179 U. S. 399.
McNally v. Hill, 293 U. S. 131.
Hawk v. Olson, 326 U. S. 271, 274.
Holiday v. Johnson, 313 U. S. 342, 350; Price v. Johnston, 334 U. S. 266, 291-92; 28 U. S. C. § 2242, restating R. S. § 754.
See Hawk v. Olson, supra, pp. 274-75, notes 3, 4.
Comity through discretion in granting habeas corpus had an antecedent in an early statutory command restraining federal injunctive interference with state courts. 28 U. S. C. § 2283; 1 Stat. 334, §5; see Bowles v. Willingham, 321 U. S. 503. Cf. the three-judge district court provisions, 28 U. S. C. §§ 2281, 2284.
117 U. S. 241.
117 U. S. 241, 252; Cook v. Hart, 146 U. S. 183.
111 U. S. 176,
117 U. S. 516.
In re Duncan, 139 U. S. 449, 454.
In re Wood, 140 U. S. 278.
In re Jugiro, 140 U. S. 291; In re Frederick, 149 U. S. 70, 77-78; New York v. Eno, 155 U. S. 89, 98; Pepke v. Cronan, 155 U. S. 100; Whitten v. Tomlinson, 160 U. S. 231, 242; Tinsley v. Anderson, 171 U. S. 101, 104-105; Minnesota v. Brundage, 180 U. S. 499, 503; Reid v. Jones, 187 U. S. 153; Urquhart v. Brown, 205 U. S. 179, 181-82; United States ex rel. Kennedy v. Tyler, 269 U. S. 13, 17.
169 U. S. 284, 291.
175 U. S. 184, 187.
Ex parte Spencer, 228 U. S. 652, 660-61.
Bryant v. Zimmerman, 278 U. S. 63, 70.
294 U. S. 103.
The point has been confirmed many times. Ex parte Botwinski, 314 U. S. 586; Ex parte Davis, 317 U. S. 592; Ex parte Williams, 317 U. S. 604; Ex parte Abernathy, 320 U. S. 219; and see cases cited in note 25, infra.
321 U. S. 114, 116-17.
White v. Ragen, 324 U. S. 760, 767; House v. Mayo, 324 U. S. 42, 46, 48; Marino v. Ragen, 332 U. S. 561, 564; Wade v. Mayo, 334 U. S. 672, 679; Young v. Ragen, 337 U. S. 235, 238. And see note 32, infra.
324 U. S. 760, 764.
334 U. S. 672.
324 U. S. 760, 765. In the White case we concluded that the state ground was the refusal by the Supreme Court of Illinois to entertain applications with possible fact controversies. Pp. 766-67. We made it clear that while proper procedure does not require review in this Court of a judgment denying habeas corpus on an adequate state ground, other available state remedies must be exhausted before an application should be entertained in a district court. P. 767.
See White v. Ragen, 324 U. S. 760; Ex parte Royall, 117 U. S. 241, 251.
Young v. Ragen, 337 U. S. 235, 238. 28 U. S. C. § 2254 reads:
“An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”
Hearings before a Subcommittee of the Senate Judiciary Committee on H. R. 3214, April 22 to June 7, 1948, 80th Cong., 2d Sess., p. 28. See 28 U. S. C. Congressional Service, p. XXVIII; H. R. Rep. No. 308 on H. R. 3214,80th Cong., 1st Sess., p. 3.
See Lyon v. Harkness, 151 F. 2d 731, 733 (C. A. 1st Cir., N. H.); United States ex rel. Monsky v. Warden of Clinton State Prison, 163 F. 2d 978, 980 (C. A. 2d Cir., N. Y.); Stonebreaker v. Smyth, 163 F. 2d 498, 501, 502 (C. A. 4th Cir., Va.); Nusser v. Aderhold, 164 F. 2d 127 (C. A. 5th Cir., Ga.); Makowski v. Benson, 158 F. 2d 158 (C. A. 6th Cir., Mich.); United States ex rel. Ross v. Nierstheimer, 159 F. 2d 994 (C. A. 7th Cir., Ill.); Guy v. Utecht, 144 F. 2d 913, 915 (C. A. 8th Cir., Minn.); Gordon v. Scudder, 163 F. 2d 518 (C. A. 9th Cir., Cal.); Herzog v. Colpoys, 79 U. S. App. D. C. 81, 143 F. 2d 137, 138.
See S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9 and H. R. Rep. No. 308, 80th Cong., 1st Sess., p. A180,
Subsequent statements by Judge John J. Parker, who served as Chairman of the Judicial Conference of Senior Circuit Judges, Committee on Habeas Corpus, are instructive.
“... The thing in mind in the drafting of this section was to provide that review of state court action be had so far as possible only by the Supreme Court of the United States, whose review of such action has historical basis, and that review not be had by the lower federal courts, whose exercise of such power is unseemly and likely to breed dangerous conflicts of jurisdiction....
“One of the incidents of the state remedy is [the] right to apply to the Supreme Court for certiorari. If a petitioner has failed to make such application after the refusal of the state court to release him, he cannot be said to have exhausted the remedies available to him under state procedure, provided he has the right to apply again to the state courts for relief as a basis for application to the Supreme Court for certiorari....
“The fact that certiorari from the Supreme Court to the state court may be called a federal remedy is not determinative of the question here involved. The crucial matter is that petitioner still has a right to attack in the courts of the state the validity of his conviction and, upon the record made in such attack, to petition the highest court of the land for a review. So long as such right remains, he does not have, and ought not have, the right to ask a review by one of the lower federal courts....” Parker, Limiting the Abuse of Habeas Corpus, 8 F. R. D. 171,176-77.
Wade v. Mayo, supra, had no effect on the discussion of § 2254, since it came down two days prior to the enactment of the new code, too late for consideration.
See H. R. Rep. No. 308, 80th Cong., 1st Sess., p. A180, and final reviser’s note to § 2254.
See note 30, supra. Compare § 2254, H. R. 3214, Union Calendar #140, H. R. Rep. No. 308, 80th Cong., 1st Sess., with §2254, H. R. 3214 in Senate, S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9.
The two exceptions at the last of the first paragraph provide for particular situations in the states. The definition of exhaustion in the last paragraph was made by the Senate at the instance of the Judicial Conference of Senior Circuit Judges. S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9. Report of the Judicial Conference, September Session 1947, p. 17.
H. R. 3214 had permitted federal habeas corpus not only where state remedies had been exhausted but where “there is no adequate remedy available in” the state court. The Senate Report informs us that the purpose of the Senate amendment was “to substitute detailed and specific language for the phrase ‘no adequate remedy available.’ That phrase is not sufficiently specific and precise, and its meaning should, therefore, be spelled out in more detail in the section as is done by the amendment.” S. Rep. No. 1559, 80th Cong., 2d Sess., p. 10.
Compare Bowen, L. J., in Cooke v. New River Co., 38 Ch. D. 56, 70-71: “... like my Brothers who sit with me, I am extremely reluctant to decide anything
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_respond1_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 respondent. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
SPEAR et al. v. GORDON et al.
(Circuit Court of Appeals, First Circuit.
June 3, 1926.)
No. 1994.
Bankruptcy <§=>76(l), 320.
Unliquidated claims arising out of contract ar¿ provable, within Bankruptcy Act (Comp. St. § 9585 et seq.), though damage claims for tort are not, and holders of such contract claims were qualified as petitioning creditors having provable claims.
Appeal from the District Court of the United States for the District of Maine; John A. Peters, Judge.
Petition by William H. Spear and others against Frank H. Gordon and others, praying that said Gordon be adjudged to -be an involuntary bankrupt. ■ From a decree dismissing the petition, petitioners appeal.
Reversed and remanded.
Joseph B. Jacobs, of Boston, Mass. (Maurice B. Rosen, of Portland, Me.,,on the brief), for appellants.
Clinton C. Stevens, of Bangor, Me., for appellees.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
PER CURIAM.
The appellants, three contract creditors of the appellee Gordon, filed a petition against him, alleging, among other things, that they were creditors having provable claims amounting in the aggregate, in excess of any security or securities held by them, to the amount of $500.
They also set out in the petition the contracts made with each of them, and the sums of money paid thereunder, and alleged breaches of said contracts. They also alleged that the sums paid Gordon under the con-. tracts were received by him fraudulently. The respondent was alleged to be insolvent, ■ and to have committed specific acts of bankruptcy.
Answers were filed denying the allegations of the petition.
When the ease was called for hearing, the District Court refused to hear evidence in support of the petition, and dismissed it on the ground that the petitioner’s claims, though contractual, were not liquidated, and therefore they did not qualify as petitioning creditors having provable claims.
In thus ruling the court erred. It should have received the petitioners’ evidence, and determined the questions arising on the petition. Unliquidated claims arising out of contract are provable, within the meaning of the Bankruptcy Act (Comp. St. § 9585 et seq.), although damage claims for tort are not. 1 Remington on Bankruptcy, § 257; Grant Shoe Co. v. Laird Co., 212 U. S. 445, 29 S. Ct. 332, 53 L. Ed. 591; Clarke v. Rogers, 183 F. 518, 106 C. C. A. 64; Pratt v. Auto Spring Repairer Co., 196 F. 495, 116 C: C. A. 261.
The decree of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion, with costs tb the appellants.
Question: This question concerns the first listed respondent. 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:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Richard Carl OPDAHL, Appellant.
No. 79-1577.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 12, 1979.
Decided Nov. 28, 1979.
Certiorari Denied Feb. 19, 1980.
See 100 S.Ct. 1056.
Henley, Circuit Judge, filed a concurring opinion.
Scott F. Tilsen, Asst. Federal Public Defender, Minneapolis, Minn., for appellant.
Thorwald H. Anderson, Jr., U. S. Atty. and Robin Sjastad, Legal Intern, Minneapolis, Minn., for appellee.
Before LAY, HEANEY and HENLEY, Circuit Judges.
LAY, Circuit Judge.
Richard Carl Opdahl appeals from his conviction of bank robbery in violation of 18 U.S.C. § 2113(a) and (d). The sole issue on appeal is whether there was sufficient corroborative evidence, in addition to the admissions of defendant, to support a guilty verdict. We affirm.
At approximately 2:35 P.M. on July 19, 1978 two men entered the rear door of the St. Louis Park Branch of Home Federal Savings and Loan Association of Minneapolis. Both were masked and wore gloves. One, who was particularly tall and slender, wore a dark blue ski mask with red trim. He was armed with a small hand gun. The other wore a bandana pulled up over his face and a hat. He was carrying a sawed off shoulder weapon. One of the robbers took the cash out of the teller’s money drawers. The two exited through the same rear door which they had entered. The total amount of money taken in the robbery was $4,876 including $200 of bait money, which was serially recorded. After exiting the bank, the two men headed in an east-southeasterly direction through the bank parking lot behind the building next door.
The surveillance cameras were activated during the robbery. The pictures depicted the robbers taking money from the tellers’ money drawers and exiting through the rear door.
After the robbery had occurred, the FBI was called to investigate. One of the agents discovered a ski mask at the foot of a large trash container behind a building just to the east of the bank. The ski mask was identified as the same one worn by the tall slender bank robber.
The St. Louis Park Branch of Home Federal Savings and Loan Association of Minneapolis was robbed again about two weeks later on August 4. At the trial Christopher Miles, a friend of Richard Opdahl, testified that Opdahl had admitted to Miles that Opdahl had previously robbed the St. Louis Park branch of Home Federal Savings and Loan of Minneapolis two weeks before the August 4 robbery. Miles pled guilty to the August 4 robbery of the same bank and testified that Richard Opdahl had told him how to execute the robbery. Miles and Richard’s brother, Lyle Opdahl, robbed the bank on August 4. Another acquaintance of Opdahl’s, Mark Bynell, additionally testified that Opdahl had told him that the robbery of Home Federal in St. Louis Park was a “pushover.” This evidence constituted the admissions which Opdahl claims lack corroboration in order to provide sufficient evidence of his guilt beyond a reasonable doubt.
When the FBI learned of Opdahl’s potential involvement with the July 19 robbery an agent took hair samples from Opdahl’s head. These were sent to the FBI laboratory along with the ski mask that had been found near the bank. Hair strands were taken from the ski mask and microscopically compared with the hair samples taken from Opdahl. Myron Scholberg of the FBI Laboratory testified that he found that Richard Opdahl’s hairs “were microscopically alike in all identifiable characteristics” with the hairs found in the ski mask. His conclusion was that the two hairs removed from the ski mask could have originated from the defendant.
The defendant does not contest that there is adequate corroboration with respect to the fact that a robbery was committed on July 19, 1978. Three bank employees, who were present when the robbery occurred, the branch manager and two tellers, testified about the details of the crime. In addition, the surveillance cameras recorded the robbery on film. There can be no doubt that a crime was committed.
Defendant’s contention is that there is not sufficient corroboration that he was the person who committed the crime. He claims that the hair taken from his head which corresponds with the hair taken from the ski mask is not enough to corroborate his admission to Miles that he robbed the bank. Defendant’s argument misses its mark.
The Supreme Court has rejected a requirement that the accused’s identity must be corroborated. In Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954), the Court indirectly dealt with the problem. The case involved a charge of income tax evasion and in that sense it was unique because unlike most crimes, tax evasion exhibits no tangible injury which can be isolated as a corpus delicti. The Court was confronted with the problem of whether there should be corroboration of the accused’s identity in this type of crime. The Court stated:
The corroboration rule, at its inception, served an extremely limited function. In order to convict of serious crimes of violence, then capital offenses, independent proof was required that someone had indeed inflicted the violence, the so-called corpus delicti. Once the existence of the crime was established, however, the guilt of the accused could be based on his own otherwise uncorroborated confession. But in a crime such as tax evasion there is no tangible injury which can be isolated as a corpus delicti. As to this crime, it cannot be shown that the crime has been committed without identifying the accused. Thus we are faced with the choice either of applying the corroboration rule to this offense and according the accused even greater protection than the rule affords to a defendant in a homicide prosecution, . . . or of finding the rule wholly inapplicable because of the nature of the offense, stripping the accused of this guarantee altogether. We choose to apply the rule, with its broader guarantee, to crimes in which there is no tangible corpus delicti, where the corroborative evidence must implicate the accused in order to show that a crime has been committed.
Id. at 153-54, 75 S.Ct. at 198 (emphasis added) (citations omitted).
Any doubt that may have remained after Smith was erased by Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), which clearly articulated the rule that corroboration of the accused’s identity was not necessary in cases which involved physical damage to person or property.
Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. A notable example is the principle that an admission of homicide must be corroborated by tangible evidence of the death of the supposed victim. See 7 Wigmore, Evidence (3d ed. 1940), § 2072, n. 5. There need in such case be no link, outside the confession, between the injury and the accused who admits having inflicted it. But where the crime involves no tangible corpus delicti, we have said that “the corroborative evidence must implicate the accused in order to show that a crime has been committed.” 348 U.S., at 154 [, 75 S.Ct. 194 at 198.] Finally, we have said that one uncorroborated admission by the accused does not, standing alone, corroborate an unverified confession. United States v. Calderon, 348 U.S. 160, 165 [, 75 S.Ct. 186, 99 L.Ed. 202.]
Id. at 489-90 n. 15, 83 S.Ct. at 418.
Since Wong Sun federal courts including this court have consistently followed the rule that corroborative evidence of the accused’s identity need not be shown where there is physical injury to person or property. In United States v. Johnson, 191 U.S. App.D.C. 193, 589 F.2d 716 (D.C. Cir. 1978), the appellant was convicted of bank robbery. At the trial an admission was allowed into evidence. The admission was to an acquaintance and the accused described the robbery in meticulous detail and bragged of paying six-months rent from the proceeds. The accused argued on appeal that there was insufficient proof outside the admission that he took part in the holdup. The court stated:
We perceive no occasion, however, to assess the substantiality of the Government’s independent proof of appellant’s participation, such as the composite drawing made with the teller’s assistance. For the Supreme Court has made clear that in cases involving a tangible corpus delicti — where the fact that a crime has been committed can be shown without identifying the perpetrator — “there need . be no link, outside the confession, between the injury and the accused who admits having inflicted it.” This principle’ extends to the crime of armed robbery, and we are accordingly constrained to reject appellant’s contention.
Id. at 719 (footnotes omitted).
Johnson is remarkable because of its similarity to the present case. Here Opdahl claims that there is insufficient corroboration to link him with the holdup — that the hair sample is not enough. In Johnson the accused claimed that the composite drawing was not enough but the court held that the admission as to the robber’s identity without any corroboration was sufficient to allow a guilty verdict.
This court has articulated the same rule in Fisher v. United States, 324 F.2d 775 (8th Cir. 1963), citing with approval an annotation from 45 A.L.R.2d 1316, 1336 (1956) which states:
The courts agree that, as a general proposition, evidence in corroboration of a confession or admission need not connect the defendant with the crime charged and that such connection can be shown by his confession or admission without corroboration on that point.
Fisher v. United States, 324 F.2d at 779.
In the present case there is no question that the corpus delicti was corroborated. Whether hair samples are sufficient corroboration of an accused’s admission that he was the person who committed the crime is not the issue. An admission by the accused identifying himself as the person involved in the holdup is sufficient to sustain a guilty verdict when the crime itself is shown by independent evidence.
The judgment of conviction is affirmed.
. Defendant relies on the general language in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954), to support his argument that corroboration of an admission is necessary. In Opper the Court stated:
It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement. Thus, the independent evidence serves a dual function. It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense. It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt.
Id. at 93, 75 S.Ct. at 164 (citation omitted).
. The case of Sansone v. United States, 334 F.2d 287 (8th Cir. 1964), also dealt with corroboration of admissions and adopted the same approach that was taken in Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954). Sansone like Smith was an income tax evasion case and the court concluded that it was necessary to corroborate admissions going to the identity of the accused. It stated:
These principles are applicable to the crime of tax evasion where “there is no tangible injury which can be isolated as a corpus delicti” and “where the corroborative evidence must implicate the accused in order to show that a crime has been committed”
Sansone v. United States, 334 F.2d at 292.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_treat
|
C
|
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.
GOODMAN v. UNITED STATES.
No. 9989.
Circuit Court of Appeals, Ninth Circuit.
June 12, 1942.
Rehearing Denied July 10, 1942.
Leo Goodman and M. Seaton Cohen, both of Los Angeles, Cal. (Max Bergman, of New York City, of counsel), for appellant.
Wm. Fleet Palmer, U. S. Atty., and Leo V. Silverstein and A. Andrew Hauk, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.
Before MATHEWS, STEPHENS, and HEALY, Circuit Judges.
STEPHENS, Circuit Judge.
Goodman is appealing from a judgment pronounced against him after conviction under an indictment charging him with conspiring with Takizawa, Nakauchi, Ta-kahashi, Yamaguchi and Keeler to export industrial diamonds from the United States to Japan without a license, in violation of 50 U.S.C.A. Appendix, § 701 and the Presidential Proclamation of July 2, 1940.
The principal ground urged by the appellant for a reversal relates to the sufficiency of the evidence to sustain the verdict. We briefly summarize the evidence upon which the Government relies:
Appellant is a native citizen of the United States and was engaged in the import-export business for a number of years.
Takahashi had been traveling between the United States and Japan since 1907, in connection with his [Takahashi’s] business of importing and exporting various articles of merchandise between the two countries.
Takahashi and appellant first met in 1937, and since then appellant has acted as broker in several instances in the purchase of merchandise by Takahashi in connection with the latter’s export business. These purchases were principally old silk stockings which were purchased for re-manufacture in Japan.
In June, 1941, Takahashi informed appellant that he had an order from Japán for industrial diamonds and suggested that appellant purchase them for him. Taka-hashi asked appellant to obtain an export license and appellant said he would try.
Appellant had never dealt in this merchandise but through the telephone directory located a firm that dealt in various kinds of abrasives including industrial diamonds. Appellant purchased some samples from this firm, dealing directly with Keeler, the manager of its abrasive department, which samples he delivered to Taka-hashi. Takahashi, being dissatisfied with the quality and color of the samples, accompanied appellant to the abrasive company’s place of business, where the two talked with Keeler. Takahashi told Keeler that he had received an order from Japan for the diamonds, but knowing nothing about them himself he would trust Keeler, and gave an order for some more samples. Keeler ordered the diamonds from New York and delivered them in Los Angeles about July 7, 1941. Between July 7 and October 1, 1941, there were six sales of industrial diamonds by the firm and those sold were delivered to Takahashi in Goodman’s presence.
Sometime in July and after Takahashi had made one or two purchases of industrial diamonds, another Japanese, Takiza-wa, went to Keeler, showed him a copy of a list which Keeler had previously given appellant, and asked Keeler about prices for industrial diamonds. Keeler told Taki-zawa that other people, including Takaha-shi, were placing orders for diamonds, and asked him who gave him the list. Takiza-wa did not reply. Keeler told Takizawa that it would be all right if he and Taka-hashi were going to purchase diamonds together.
The next time Keeler saw Takahashi and appellant he told them about Takizawa’s visit. Takahashi said that Takizawa was one of his associates. Keeler then said that he would prefer that Takahashi and Takizawa purchased material together and credited appellant with the sales, so that there would be no friction between the two..
In August Takizawa met Takahashi, appellant and Keeler at the abrasive company’s place of business and there and.then Takahashi complained that the quality of the merchandise was not very good, saying that there was a big order coming from Japan and he wanted Keeler to., be very' careful about the quality.
Keeler then went to Chicago, selected the diamonds and had them shipped, to his company’s bank at Los Angeles. Taka-hashi and Takizawa in Goodman’s and Keeler’s presence, viewed the merchandise and accepted a. part of it. Some . time thereafter Keeler took the diamonds from the vault in the bank and drove' with appellant to appellant’s office, where Taka-hashi, Takizawa and Nakauchi subsequently arrived. After some conversations Ta-kahashi took the balance of the diamonds, paid appellant $8,000 and appellant in turn gave Keeler a check for the same amount.
The only evidence with respect to the disposition of .the diamonds purchased hot so far related is as follows:
The sample diamonds purchased by appellant at his first meeting with Keeler were kept by Takahashi. Takahashi returned some of the other diamonds to the abrasive firm and received credit. He testified that he did not send any of them away:
On one occasion Nakauchi received three packages of 'diamonds from Taka-hashi or Takizawa and put them on a shelf in his store in Gardena. These three packages were taken from. that shelf by an agent of the Federal Bureau of Investigation.
Nakauchi also testified that Takahashi or Takizawa once gave him a bag or portable phonograph and told him that it contained diamonds, and thát he .[Nakauchi] left the bag in a hotel room in San Francisco. He had driven to San Francisco with a friend who was returning to Japan. There is nothing in the evidence to identify this friend, and there is no further testimony as to the disposition of the diamonds.
None of the defendants had a license to export diamonds to Japan.
Appellant urges, first, that under the case of United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128, affirming 2 Cir., 109 F.2d 579, the conviction must be set aside on the theory that [quoting from appellant’s brief] “one who supplies legitimate articles with knowledge that the purchaser intends to use them for criminal purposes does not thereby become a co-conspirator with the purchaser”.
It is urged by appellant that the most that the evidence discloses is that he acted as broker in obtaining the diamonds and that even though he might have had knowledge of a conspiracy to use them for an illegal purpose, such knowledge would not make him a co-conspirator.
But the Falcone case does not lay down such a broad principle of law. Instead the Court pointed out in that case that there was nothing therein to indicate that the defendant had knowledge of a conspiracy to violate the law and held that one cannot become a member of a conspiracy without knowledge of its existence.
Nevertheless we are of the opinion and hold that the conviction of the appellant must be set aside, for the reason that the record is devoid of evidence from which it could be inferred that he had any knowledge of an illegal conspiracy. In this respect the case is similar to the Falcone case, supra.
We have hereinbefore in footnotes 1 and 2 quoted the applicable sections of the law, from which it appears that at the time involved there was nothing unlawful in exporting diamonds to Japan, provided, however, the exporter obtained a license to do so at some time “prior to the clearing of the goods through the port of exit.” Even if the appellant did know the ultimate destination of the diamonds, there is not a word from which the-jury could properly infer that he knew they were to be exported without a license. The only expression in the evidence upon the subject was from Takahashi who suggested that appellant help him procure a license, and this, of course, is- far from evidence that it was the intent that no license should be obtained. The evidence creates no more than a suspicion.
Reversed.
HEÁLY, Circuit Judge dissents.
Section 701, Title 50 U.S.C.A. Appendix, was enacted on' July' 2, 1940. Its pertinent- provisions are as follows:
“Whenever the President determines that it is necessary. in- the interest of national defense to prohibit or curtail the exportation of any military equipment or munitions, or component parts, thereof, or machinery, tools, or material, or supplies necessary for the manufacture, servicing, or operation thereof, he may by proclamation prohibit or curtail such exportation, except under such rules and regulations as he shall prescribe.”
On the same day as § 701,'50 U.S. C.A. Appendix, was enacted, the President took the following action' under the statute: (1) He issued a Military Order designating Brigadier General Rus--sell L. Maxwell as Administrator of Export Control, and’ (2) he issued'a Presidential Proclamation (No. 2413) providing, .among other things,, as. follows:
“Now/ therefore, I,. Franklin' D. Roosevelt, ■ President ;of- the United States of America, acting under, and. by virtue of the authority vested in me by said Act of Congress, do hereby proclaim that , the administration of the provisions of section 6 of; that act is vested in the Administrator of Export Control, who shall administer such provisions under such rules and regulations as I shall from time to time prescribe in the interest of the national defense.
“And I do hereby further proclaim that upon the recommendation of the aforesaid Administrator of Export Control, I have determined that it is necessary in the interest of the national defense that on and after July 5, 1940, the articles and materials hereinafter-listed shall not be exported from the United States except when authorized in each case -by a license as hereinafter-provided: * * *
“i. Industrial diamonds. * * *
“And I do hereby empower the Secretary of State to issue licenses authorizing the exportation of any of the said, articles and materials the exportation, of .which, is ;not already, subjected to-the requirement that a, license be obtained- from .the Secretary of,-State authorizing their exportation and I do-hereby authorize and enjoin him to issue or refuse to issue licenses authorizing the exportation of any of the articles or materials listed above in accordance with the aforesaid rules and regulations or such specific directives as may be, from time to time, communicated to him by the Administrator of Export Control.”
On March 15, 1941, the President issued an executive order, effective April 15, 1941, prescribing additional regulations governing the exportation of articles enumerated in the proclamation of July 2, 1940. Among these regulations is the following:
“8. The original license must be presented, prior to exportation, to the collector of customs at the port through which the shipment authorized to be exported is being made. If shipment is made by parcel post, the license must be presented to the postmaster at the post office at which the parcel is mailed.”
The Administrator of Export Control at the same time issued the following “Information Regarding the Exportation of Articles and Material Subject to License” [pp. 25-32 of “Export Control Regulations and Export Control Schedule No. 1” published by the Administrator of Export Control, effective April 15, 1941]:
“4. Who May Apply.
“a. Applications may be made by a corporation', partnership, individual, or their duly authorized agent, who is in fact the exporter of the .goods, except when the proposed shipment consists of unused metal working machinery, in which case applications must be made by the manufacturer * * *.
“5. When To Apply.
“a. Applications may be made at any time prior to the clearing of the goods through the port of exit.”
Industrial diamonds differ from gem diamonds in1 composition. Their value depends upon the degree of hardness. They are used for a number of purposes in mechanical work, such as lapping, truing, grinding wheels, making diamond saws, cutting vitreous ware, lapping tools, boring tools, and the like.
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_state
|
23
|
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".
LUCKING et al. v. DELANO, Comptroller of the Currency, et al.
No. 8585.
Circuit Court of Appeals, Sixth Circuit.
Jan. 9, 1941.
William Alfred Lucking, of Detroit, Mich. (Laurence M. Sprague, George E. Leonard, Jr., and Lucking, Van Auken & Sprague, all of Detroit, Mich., on the brief), for appellants.
Frank E. Wood, of Cincinnati, Ohio, and William B. Cudlip, of Detroit, Mich., for appellees.
A. E. Power, of Detroit, Mich. (Carlos J. Jolly, A. E. Power, and R. O. Thomas, all of Detroit, Mich., on the brief), for General Motors Corporation.
Frank E. Wood and Robert S. Marx, both of Cincinnati, Ohio, and Carl Runge and Frank M. Wiseman, both of Detroit, Mich., on the brief for B. C. Schram, Receiver of First Nat. Bank-Detroit and First Nat. Bank-Detroit.
Harry C. Bulkley, William B. Cudlip, T. Donald Wade, Ellis B. Merry, and Bulk-ley, Ledyard, Dickinson & Wright, all of Detroit, Mich., on the brief for National Bank of Detroit.
Before HICKS, ALLEN, and HAMILTON, Circuit Judges.
PER CURIAM.
Appellants filed a class action on behalf of themselves and all general creditors, depositors and stockholders of First National Bank-Detroit, an insolvent national bank, for the purpose of attacking as invalid a sale, made after insolvency, of a portion of the bank’s assets to the National Bank of Detroit, newly organized for that purpose. The District Court granted appellees’ motion to dismiss the complaint on the ground that appellants are without capacity to bring ■or maintain the action.
At the time of filing the complaint, the insolvent bank was in receivership ; therefore any cause of action on behalf of creditors and stockholders would normally be instituted by the receiver. Demand upon the receiver to bring the suit is a prerequisite to the right to maintain the action. Long v. Stites, 6 Cir., 88 F.2d 554.
Rule 23 (b) of Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, in setting forth the prerequisites of a derivative class action, provides: “The complaint shall also set forth with particularity the efforts of the plaintiff to secure from the managing directors or trustees [the receiver in the instant case] and, if necessary, from the shareholders such action as he desires, and the reasons for his failure to obtain such action or the reasons for not making such effort.” Appellants’ effort to comply with this prerequisite consists merely of allegations to the effect that any demand upon the receiver to institute and maintain the causes of action set forth in the complaint “would be entirely useless and futile, under the circumstances.” There is no averment of facts indicating any personal interest on the part of the receiver, and no facts are set forth explaining why the demand would be futile. Appellants further allege that appellees “never have intended and do not now intend .to, and will not in the future, commence and prosecute any action to redress and rectify said wrongs,” and pray that the complaint be treated as a formal demand and request upon the receiver. It appears, therefore, that no demand was made. Obviously the filing of the complaint cannot be regarded as a demand to sue, for by starting the action appellants have usurped the field. A bare allegation of the futility of such a demand is not sufficient without allegations of fact showing how and why the demand would be futile. Appellants, in bringing a class action, must exhaust every remedy within the corporation before suing on causes of action which in the first instance should be asserted by the receiver. Long v. Stites, supra; Wales v. Jacobs, 6 Cir., 104 F.2d 264. Since the appellants have not done this, they are without capacity to maintain the action.
The order is affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_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.
Elvin BRICKHOUSE, Jr., Appellant, v. Robert F. ZAHRADNICK, Superintendent of the Virginia State Penitentiary, Appellee.
No. 76-2032.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 14, 1977.
Decided March 28, 1977.
Craig Ellis, Third Year Law Student (Michael E. Geltner, Georgetown University Law Center, Washington, D. C., on brief), for appellant.
Wilburn C. Dibling, Jr., Asst. Atty. Gen., Richmond, Va. (Andrew P. Miller, Atty. Gen. of Virginia, Richmond, Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
Tried and convicted by the court in 1967, after waiver of a jury trial in accordance with the Virginia practice, under an indictment charging rape, abduction and robbery, the petitioner was sentenced to death on the rape charge and to imprisonment for thirty years on the robbery charge and for twenty years on the abduction charge. The conviction, on appeal to the Virginia Supreme Court, was affirmed but, on certiorari to the United States Supreme Court, the death sentence was vacated and the proceedings were remanded to the trial court for resentencing on the rape charge alone. On remand, the petitioner was resentenced on the rape charge to life imprisonment and this resentencing, on appeal, was affirmed without an opinion. The petitioner then began his habeas proceeding in the District Court. That Court dismissed his habeas petition and this appeal followed.
In his brief in this Court, the petitioner contends that the Virginia criminal procedure for waiver of jury trial and trial by the court is constitutionally defective. In Vines v. Muncy we thoroughly canvassed similar claims and found them without merit. It is unnecessary to repeat here our reasons for such conclusion. The petitioner has, however, raised, an additional claim of constitutional violation which he asserts is •unique to his case. This claim of the petitioner is that his waiver of his constitutional right to a jury trial was illegally coerced by his fear that, because of the then prevailing Virginia rule for excluding from the jury determining both guilt and punishment any person with conscientious scruples against capital punishment, a jury trial before a jury thus restricted would be so likely to result in the imposition of a death sentence as to constitute a violation of due process. He predicates this contention primarily on Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, decided after his trial, which held that the imposition of a death sentence (but not a finding of guilt) by a jury from which persons with conscientious scruples against capital punishment were excluded would deprive a defendant “of his life without due process.” He argues that he would not have waived a jury trial if he had anticipated the decision in Witherspoon, which would have made illegal at his trial the exclusion of any veniremen with conscientious scruples against capital punishment.
The record in this case shows that the petitioner was represented by counsel at the time of his waiver of a jury trial. Petitioner does not suggest that his counsel was incompetent or neglectful of his rights. The trial court found such counsel able and experienced. Petitioner admitted in open court that he had consulted six or seven times with his counsel and that his counsel was fully “acquainted with the facts of [his] case.” He affirmed that after reviewing with his counsel whether he should exercise his right to a jury trial, he had chosen of his own “free will” to waive a jury trial and that this was his “decision,” reached by him without being “influenced by Mr. Madison [his counsel] in making that decision.” Petitioner makes no contention that at the time of his waiver, he was incompetent or otherwise not in control of his mental faculties.
Under these circumstances, we think Brady v. United States (1970) 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, conclusive against petitioner’s claim. In Brady the petitioner likened a guilty plea to the waiver of a jury trial and contended that his guilty plea had been coerced because the statute under which he was indicted was, subsequent to his plea, held to be unconstitutional in permitting the imposition of the death penalty for its violation oniy on a defendant who asserted his right to contest his guilt before a jury, thereby placing an impermissible burden on the constitutional right to a jury trial. In denying the contention, the court said (p. 757, 90 S.Ct. p. 1473):
“ * * * A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.”
We perceive no distinction between Brady and the case before us. In both cases the defendant was waiving a jury trial — in Brady by his guilty plea, in this case by his express waiver. Under his claim in Brady, the defendant entered his waiver because he mistakenly assumed that the statute under which he was charged was valid in its penalty provisions; in the present case, the petitioner claims he entered his waiver because he mistakenly assumed that the procedure for qualifying jurors in a capital case in Virginia was valid. In both cases, the defendant was represented by counsel, with whom he consulted at length and by whom he was fully advised of his rights by his own admission. In both cases the defendant relied on a subsequent judicial decision, which, had he anticipated, would have induced him not to waive, in order to support his claim that his waiver at his earlier trial had been coerced or was involuntary. In neither case, however, did the waivers— in Brady of a right to a jury trial by his plea of guilty, and in this case by his waiver of a jury in favor of trial by the Court— “become vulnerable because [these] later judicial decisions indicate[d] that the [waivers] rested on a faulty premise.” It follows from this principle as established in Brady that the voluntariness of petitioner’s waiver of a jury trial may not be invalidated by any claim of coercion based on failure to anticipate the subsequent decision in Witherspoon.
AFFIRMED.
. The Virginia practice is fully described in Vines v. Muncy (4th Cir. 1977) 553 F.2d 342 (decided March 1977).
. See Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.
. For this contention, Brady relied on United States v. Jackson (1968) 390 U.S. 570, 572, 88 S.Ct. 1209, 20 L.Ed.2d 138.
. 397 U.S. at 757, 90 Ct. at 1473.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_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. Luis Torres ROJAS, Defendant-Appellant.
No. 88-3501.
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 23, 1989.
William L. Crull, III, F. Irvin Dymond, New Orleans, La., for defendant-appellant.
Walter F. Becker, Asst. U.S. Atty., John Volz, U.S. Atty., Gerry Deegan, Robert J. Boitmann, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.
Before GEE, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Luis Torres Rojas pled guilty to possession of approximately four hundred ninety-seven grams of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). On appeal, he challenges only his sentence. Rojas contends that the sentencing guidelines are unconstitutional. He also contends that he was entitled to a reduction in his offense level because he was a minor or minimal participant in his crime; that the district judge incorrectly determined the amount of cocaine involved in the crime; and that the district judge should have made a downward departure from the guidelines because Rojas aided authorities. Finding no error in the sentence imposed, we affirm.
I
Rojas challenges the constitutionality of the sentencing guidelines. His argument is foreclosed by the Supreme Court’s recent decision in Mistretta v. United States, — U.S. -, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).
II
The district judge found that Rojas’s crime involved 497 grams of cocaine. Rojas contends that the district court should instead have found that the crime involved only 338 grams, because the 497 grams was only 68% pure. This argument contradicts the clear language of the guidelines. In a footnote to the Drug Quantity Table accompanying Guideline 2D1.1, the guidelines state, “if any mixture of a compound contains any detectable amount of a controlled substance, the entire amount of the mixture or compound shall be considered in measuring the quantity.” The district court therefore correctly applied § 2D1.1.
III
Rojas contends that because he was a drug courier, he was entitled to a reduction in his offense level as a “minor” or “minimal” participant. See Guideline 3B1.-2. We have held, however, that a defendant may be a courier without being either a minimal participant or a minor participant. United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.1989).
Minor participant status is not a legal conclusion derived by applying the guidelines to factual determinations. It is itself a factual determination, and enjoys the protection of the “clearly erroneous” standard. That factual determination turns upon culpability, not courier status. As we said in Buenrostro, a defendant may be a courier without being substantially less culpable than the average participant. Culpability is a determination requiring sensitivity to a variety of factors.
In this case, the district judge clearly found that the defendant was neither a minimal nor a minor participant, basing his conclusion upon the significant quantity of cocaine which Rojas possessed. The record provides clear support for this conclusion, and, following Buenrostro, we therefore affirm.
IV
Rojas claims that the trial judge should have departed from the guidelines because Rojas provided substantial assistance to the authorities. See Guideline 5K1.1. We will uphold a district court’s refusal to depart from the guidelines unless the refusal was in violation of law. Buenrostro, 868 F.2d at 139. Rojas does not, however, suggest any law violated by the district court’s refusal to depart. Indeed, the gist of the defendant’s claim is that the district court gave him precisely the sentence required by law. A claim that the district court refused to depart from the guidelines and imposed a lawful sentence provides no ground for relief. We therefore affirm the district court’s refusal to depart from the guidelines.
The judgment of the district court is, in all respects,
AFFIRMED.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
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sc_authoritydecision
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
MEESE, ATTORNEY GENERAL OF THE UNITED STATES, et al. v. KEENE
No. 85-1180.
Argued December 2, 1986
Decided April 28, 1987
Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Powell, and O’Connor, JJ., joined. Blackmun, J., filed an opinion dissenting in part, in which BRENNAN and Marshall, JJ., joined, post, p. 485. Scalia, J., took no part in the consideration or decision of the case.
Deputy Solicitor General Ayer argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Paul J. Larkin, Jr., and Leonard Schaitman.
John G. Donhoff, Jr., argued the cause for respondent. With him on the brief was Stephen R. Barnett
Daniel J. Popeo and George C. Smith filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Daniel Marcus, Susan W. Shaffer, Charles S. Sims, Robert Abrams, Attorney General of New York, 0. Peter Sherwood, Solicitor General, Lawrence S. Kahn, Deputy Solicitor General, and Sanford M. Cohen, Assistant Attorney General; for the Freedom to Read Foundation by Robert Steven Chapman; and for Playboy Enterprises, Inc., et al by Bruce J. Ennis, Jr., Burton Joseph, and Maxwell J. Lillienstein.
Justice Stevens
delivered the opinion of the Court.
The Foreign Agents Registration Act of 1938, 52 Stat. 631-633, as amended in 1942 and 1966, 22 U. S. C. §§ 611-621 (Act), uses the term “political propaganda,” as defined in the Act, to identify those expressive materials that must comply with the Act’s registration, filing, and disclosure requirements. The constitutionality of those underlying requirements and the validity of the characteristics used to define the regulated category of expressive materials are not at issue in this case. The District Court concluded, however, that Congress violated the First Amendment by using the term “political propaganda” as the statutory name for the regulated category of expression.
Appellee, an attorney and a member of the California State Senate, does not want the Department of Justice and the public to regard him as the disseminator of foreign political propaganda, but wishes to exhibit three Canadian motion picture films that have been so identified. The films, distributed by the NFBC, deal with the subjects of nuclear war and acid rain. Appellee brought suit in the Federal District Court for the Eastern District of California on March 24, 1983, to enjoin the application of the Act to these three films. On May 23, 1983, the District Court denied appellants’ motion to dismiss and granted appellee’s motion for a preliminary injunction. The injunction prohibited appellants from designating the films as “political propaganda” and from subjecting them to the labeling and reporting requirements of the Act. The court issued findings of fact and conclusions of law on September 7, 1983. Keene v. Smith, 569 F. Supp. 1513. The court held that the risk of damage to Keene’s reputation established his standing to challenge the constitutionality of the statute’s use of the term “propaganda,” and that appellee had established his entitlement to a preliminary injunction.
On September 12, 1985, the District Court granted summary judgment for appellee and a permanent injunction against enforcement of any portion of the Act which incorporates the term “political propaganda.” 619 F. Supp. 1111. The District Court opined that the term “propaganda” is a semantically slanted word of reprobation; that the use of such a denigrating term renders the regulated materials unavailable to American citizens who wish to use them as a means of personal expression; and that since there was no compelling state interest to justify the use of such a pejorative label, it was an unnecessary, and therefore invalid, abridgment of speech. The court amended its judgment on October 29,1985, limiting the permanent injunction against enforcement of the Act to the three films at issue in this case.
We noted probable jurisdiction of the Attorney General’s appeal under 28 U. S. C. § 1252, 475 U. S. 1117 (1986), and we now reverse.
Before we discuss the District Court’s holding on the First Amendment issue, we briefly describe the statutory scheme and determine that appellee has standing to challenge the Act.
I
The statute itself explains the basic purpose of the regulatory scheme. It was enacted:
“[T]o protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in the light of their associations and activities.” 56 Stat. 248-249.
See Viereck v. United States, 318 U. S. 236, 244 (1943).
The Act requires all agents of foreign principals to file detailed registration statements, describing the nature of their business and their political activities. The registration requirement is comprehensive, applying equally to agents of friendly, neutral, and unfriendly governments. Thus, the New York office of the NFBC has been registered as a foreign agent since 1947 because it is an agency of the Canadian government. The statute classifies the three films produced by the Film Board as “political propaganda” because they contain political material intended to influence the foreign policies of the United States, or may reasonably be adapted to be so used.
When the agent of a foreign principal disseminates any “political propaganda,” §611(j), in the United States mails or in the channels of interstate commerce, he or she must also provide the Attorney General with a copy of the material and with a report describing the extent of the dissemination. In addition, he or she must provide the recipient of the material with a disclosure statement on a form prescribed by the Attorney General. When an agent seeks to disseminate such political advocacy material, he or she must first label that material with certain information, the agent’s identity, and the identity of the principal for whom he or she acts. The standard form to be used with films reads as follows:
“This material is prepared, edited, issued or circulated by (name and address of registrant) which is registered with the Department of Justice, Washington, D. C. under the Foreign Agents Registration Act as an agent of (name and address of foreign principal). Dissemination reports on this film are filed with the Department of Justice where the required registration statement is available for public inspection. Registration does not indicate approval of the contents of this material by the United States Government.” App. 16, 59.
It should be noted that the term “political propaganda” does not appear on the form.
The statutory definition of that term reads as follows:
“(j) The term ‘political propaganda’ includes any oral, visual, graphic, written, pictorial, or other communication or expression by any person (1) which is reasonably adapted to, or which the person disseminating the same believes will, or which he intends to, prevail upon, indoctrinate, convert, induce, or in any other way influence a recipient or any section of the public within the United States with reference to the political or public interests, policies, or relations of a government or a foreign country or a foreign political party or with reference to the foreign policies of the United States or promote in the United States racial, religious, or social dissensions, or (2) which advocates, advises, instigates, or promotes any racial, social, political, or religious disorder, civil riot, or other conflict involving the use of force or violence in any other American republic or the overthrow of any government or political subdivision of any other American republic by any means involving the use of force or violence.” §611(j).
I — I I — I
In determining whether a litigant has standing to challenge governmental action as a violation of the First Amendment, we have required that the litigant demonstrate “a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U. S. 1, 14 (1972). In Laird, the plaintiffs alleged that the intelligence-gathering operations of the United States Army “chilled” the exercise of their First Amendment rights because they feared that the defendants might, in the future, make unlawful use of the data gathered. We found that plaintiffs lacked standing; the Army’s intelligence-gathering system did not threaten any cognizable interest of the plaintiffs. While the governmental action need not have a direct effect on the exercise of First Amendment rights, we held, it must have caused or must threaten to cause a direct injury to the plaintiffs. Id., at 12-13. The injury must be “‘distinct and palpable.’” Allen v. Wright, 468 U. S. 737, 751 (1984) (citations omitted).
Appellee’s allegations and affidavits establish that his situation fits squarely within these guidelines. To be sure, the identification as “political propaganda” of the three films Keene is interested in showing does not have a direct effect on the exercise of his First Amendment rights; it does not prevent him from obtaining or exhibiting the films. As the District Court recognized, however, “[w]hether the statute in fact constitutes an abridgement of the plaintiff’s freedom of speech is, of course, irrelevant to the standing analysis.” 619 F. Supp., at 1118. While Keene did not and could not allege that he was unable to receive or exhibit the films at all, he relies on the circumstance that he wished to exhibit the three films, but was “deterred from exhibiting the films by a statutory characterization of the films as ‘political propaganda.’” 569 F. Supp., at 1515. If Keene had merely alleged that the appellation deterred him by exercising a chilling effect on the exercise of his First Amendment rights, he would not have standing to seek its invalidation. See Laird, supra, at 13-14.
We find, however, that appellee has alleged and demonstrated more than a “subjective chill”; he establishes that the term “political propaganda” threatens to cause him cognizable injury. He stated that “if he were to exhibit the films while they bore such characterization, his personal, political, and professional reputation would suffer and his ability to obtain re-election and to practice his profession would be impaired.” 569 F. Supp., at 1515. In support of this claim, appellee submitted detailed affidavits, including one describing the results of an opinion poll and another containing the views of an experienced political analyst, supporting the conclusion that his exhibition of films that have been classified as “political propaganda” by the Department of Justice would substantially harm his chances for reelection and would adversely affect his reputation in the community. The affidavits were uncontradicted.
In ruling on the motion for summary judgment, the District Court correctly determined that the affidavits supported the conclusion that appellee could not exhibit the films without incurring a risk of injury to his reputation and of an impairment of his political career. The court found that the Act “puts the plaintiff to the Hobson’s choice of foregoing the use of the three Canadian films for the exposition of his own views or suffering an injury to his reputation.” 619 F. Supp., at 1120. While appellee does not allege that the Act reduces the number of people who will attend his film showings, see Brief for Appellee 15, n. 14, he cites “the risk that the much larger audience that is his constituency would be influenced against him because he disseminated what the government characterized as the political propaganda of a foreign power.” Ibid. See also Tr. of Oral Arg. 36 (the label “raises the hackles of suspicion on the part of the audience”). As the affidavits established, this suspicion would be a substantial detriment to Keene’s reputation and candidacy.
It is, of course, possible that appellee could have minimized these risks by providing the viewers of the films with an appropriate statement concerning the quality of the motion pictures — one of them won an “Oscar” award from the Academy of Motion Picture Arts and Sciences as the best foreign documentary in 1983 — and his reasons for agreeing with the positions advocated by their Canadian producer concerning nuclear war and acid rain. Even on that assumption, however, the need to take such affirmative steps to avoid the risk of harm to his reputation constitutes a cognizable injury in the course of his communication with the public. This case is similar to Lamont v. Postmaster General, 381 U. S. 301 (1965), in which we did not question that petitioner had standing to challenge a statute requiring the Postmaster General to hold all “communist political propaganda” originating abroad and not release it to the addressee unless that individual made a written request to the Post Office for delivery of the material. Although the statute was directed to the Postmaster General, it affected addressee Lamont just as the Act under consideration affected Keene. The necessity of going on the record as requesting this political literature constituted an injury to Lamont in his exercise of First Amendment rights. Likewise, appellee is not merely an undifferentiated bystander with claims indistinguishable from those of the general public, as the Government argues; he would have to take affirmative steps at each film showing to prevent public formation of an association between “political propaganda” and his reputation. Moreover, while these steps might prevent or mitigate damage to his reputation among those members of the public who do view the films, they would be ineffective among those citizens who shun the film as “political propaganda.”
Our cases recognize that a mere showing of personal injury is not sufficient to establish standing; we have also required that the injury be “fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S., at 751; see also Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982). Because the alleged injury stems from the Department of Justice’s enforcement of a statute that employs the term “political propaganda,” we conclude that the risk of injury to appellee’s reputation “fairly can be traced” to the defendant’s conduct. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 41 (1976).
Moreover, enjoining the application of the words “political propaganda” to the films would at least partially redress the reputational injury of which appellee complains. The Attorney General argues that an injunction would not provide the relief sought, because appellee’s constituents and others may continue to react negatively to his exhibition of films once they have been labeled as “political propaganda.” However, appellee’s alleged harm occurs because the Department of Justice has placed the legitimate force of its criminal enforcement powers behind the label of “political propaganda.” A judgment declaring the Act unconstitutional would eliminate the need to choose between exhibiting the films and incurring the risk that public perception of this criminal enforcement scheme will harm appellee’s reputation. Appellee declared his intent “to continue to exhibit the three films periodically in the future, but only if the defendants are permanently enjoined from classifying the films as ‘political propaganda.’” Declaration of Barry Keene As Regards Having Exhibited the Three Films, App. 110. Thus, the threatened injury alleged in the complaint is “likely to be redressed by a favorable decision.” See Valley Forge, 454 U. S., at 472, and cases cited ibid., at n. 9.
Ill
We begin our examination of the District Court’s ruling on the First Amendment issue by noting that the term “political propaganda” has two meanings. In popular parlance many people assume that propaganda is a form of slanted, misleading speech that does not merit serious attention and that proceeds from a concern for advancing the narrow interests of the speaker rather than from a devotion to the truth. See, e. g., Declaration of Edwin Newman, Correspondent for NBC News, App. 107-108. Casualty reports of enemy belligerents, for example, are often dismissed as nothing more than “propaganda.” As defined in the Act, the term political propaganda includes misleading advocacy of that kind. See 22 U. S. C. § 611(j). But it also includes advocacy materials that are completely accurate and merit the closest attention and the highest respect. Standard reference works include both broad, neutral definitions of the word “propaganda” that are consistent with the way the word is defined in this statute, and also the narrower, pejorative definition.
Appellee argues that the statute would be unconstitutional even if the broad neutral definition of propaganda were the only recognized meaning of the term because the Act is “a Classic Example of Content-Based Government Regulation of Core-Value Protected Speech.” As appellee notes, the Act’s reporting and disclosure requirements are expressly conditioned upon a finding that speech on behalf of a foreign principal has political or public-policy content.
The District Court did not accept this broad argument. It found that the basic purpose of the statute as a whole was “to inform recipients of advocacy materials produced by or under the aegis of a foreign government of the source of such materials” (emphasis deleted), and that it could not be gainsaid that this kind of disclosure serves rather than disserves the First Amendment. The statute itself neither prohibits nor censors the dissemination of advocacy materials by agents of foreign principals.
The argument that the District Court accepted rests not on what the statute actually says, requires, or prohibits, but rather upon a potential misunderstanding of its effect. Simply because the term “political propaganda” is used in the text of the statute to define the regulated materials, the court assumed that the public wall attach an “unsavory connotation,” 619 F. Supp., at 1125, to the term and thus believe that the materials have been “officially censured by the Government.” Ibid. The court further assumed that this denigration makes this material unavailable to people like appellee, who would otherwise distribute such material, because of the risk of being seen in an unfavorable light by the members of the public who misunderstand the statutory scheme. According to the District Court, the denigration of speech to which the label “political propaganda” has been attached constitutes “a conscious attempt to place a whole category of materials beyond the pale of legitimate discourse,” id., at 1126, and is therefore an unconstitutional abridgment of that speech. We find this argument unpersuasive, indeed, untenable, for three reasons.
First, the term “political propaganda” does nothing to place regulated expressive materials “beyond the pale of legitimate discourse.” Ibid. Unlike the scheme in Lamont v. Postmaster General, the Act places no burden on protected expression. We invalidated the statute in Lamont as interfering with the addressee’s First Amendment rights because it required “an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressee’s First Amendment rights.” 381 U. S., at 305. The physical detention of the materials, not their mere designation as “communist political propaganda,” was the offending element of the statutory scheme. The Act “se[t] administrative officials astride the flow of mail to inspect it, appraise it, write the addressee about it, and await a response before dispatching the mail.” Id., at 306. The Act in this case, on the other hand, does not pose any obstacle to appellee’s access to the materials he wishes to exhibit. Congress did not prohibit, edit, or restrain the distribution of advocacy materials in an ostensible effort to protect the public from conversion, confusion, or deceit.
To the contrary, Congress simply required the dissemina-tors of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda. The statute does not prohibit appellee from advising his audience that the films have not been officially censured in any way. Disseminators of propaganda may go beyond the disclosures required by statute and add any further information they think germane to the public’s viewing of the materials. By compelling some disclosure of information and permitting more, the Act’s approach recognizes that the best remedy for misleading or inaccurate speech contained within materials subject to the Act is fair, truthful, and accurate speech. See generally Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence”). The prospective viewers of the three films at issue may harbor an unreasoning prejudice against arguments that have been identified as the “political propaganda” of foreign principals and their agents, but the Act allows appellee to combat any such bias simply by explaining — before, during, or after the film, or in a wholly separate context —that Canada’s interest in the consequences of nuclear war and acid rain does not necessarily undermine the integrity or the persuasiveness of its advocacy.
Ironically, it is the injunction entered by the District Court that withholds information from the public. The suppressed information is the fact that the films fall within the category of materials that Congress has judged to be “political propaganda.” A similar paternalistic strategy of protecting the public from information was followed by the Virginia Assembly, which enacted a ban on the advertising of prescription drug prices by pharmacists. See Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976). The State sought to justify the ban as a means of preventing “the aggressive price competition that will result from unlimited advertising” and the “loss of stable pharmacist-customer relationships” that would result from comparison shopping on the basis of price. We wholly rejected these justifications, finding that the ban was predicated upon assumptions about the reactions the public would have if they obtained the “wrong” kind of information. Although the proscribed information in that case was price advertising of pharmacy items, our rationale applies equally to information that the Congress considers certain expressive materials to be “propaganda”:
“[0]n close inspection it is seen that the State’s protectiveness of its citizens rests in large measure on the advantages of their being kept in ignorance. The advertising ban does not directly affect professional standards one way or the other. It affects them only through the reactions it is assumed people will have to the free flow of drug price information.” Id., at 769.
Likewise, despite the absence of any direct abridgment of speech, the District Court in this case assumed that the reactions of the public to the label “political propaganda” would be such that the label would interfere with freedom of speech. In Virginia Pharmacy Bd., we squarely held that a zeal to protect the public from “too much information” could not withstand First Amendment scrutiny:
“There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.... It is precisely this kind of choice, between the dangers of suppressing information, and the dangers from its misuse if it is freely available, that the First Amendment makes for us.” Id., at 770.
See also Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 96-97 (1977).
Second, the reasoning of the District Court is contradicted by history. The statutory definition of “political propaganda” has been on the books for over four decades. We should presume that the people who have a sufficient understanding of the law to know that the term “political propaganda” is used to describe the regulated category also know that the definition is a broad, neutral one rather than a pejorative one. Given this long history, it seems obvious that if the fear of misunderstanding had actually interfered with the exhibition of a significant number of foreign-made films, that effect would be disclosed in the record. Although the unrebutted predictions about the potentially adverse consequences of exhibiting these films are sufficient to support appellee’s standing, they fall far short of proving that the public’s perceptions about the word “propaganda” have actually had any adverse impact on the distribution of foreign advocacy materials subject to the statutory scheme. There is a risk that a partially informed audience might believe that a film that must be registered with the Department of Justice is suspect, but there is no evidence that this suspicion— to the degree it exists — has had the effect of Government censorship.
Third, Congress’ use of the term “political propaganda” does not lead us to suspend the respect we normally owe to the Legislature’s power to define the terms that it uses in legislation. We have no occasion here to decide the permissible scope of Congress’ “right to speak”; we simply view this particular choice of language, statutorily defined in a neutral and evenhanded manner, as one that no constitutional provision prohibits the Congress from making. Nor do we agree with the District Court’s assertion that Congress’ use of the term “political propaganda” was “a wholly gratuitous step designed to express the suspicion with which Congress regarded the materials.” 619 F. Supp., at 1125. It is axiomatic that the statutory definition of the term excludes unstated meanings of that term. Colautti v. Franklin, 439 U. S. 379, 392, and n. 10 (1979). Congress’ use of the term “propaganda” in this statute, as indeed in other legislation, has no pejorative connotation. As judges it is our duty to construe legislation as it is written, not as it might be read by a layman, or as it might be understood by someone who has not even read it. If the term “political propaganda” is construed consistently with the neutral definition contained in the text of the statute itself, the constitutional concerns voiced by the District Court completely disappear.
The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Scalia took no part in the consideration or decision of this case.
In a letter dated January 13,1988, the Chief of the Registration Unit of the Internal Security Section of the Criminal Division of the Department of Justice notified the National Film Board of Canada (NFBC) that these three films were “political propaganda,” and requested that the NFBC comply with the labeling and reporting requirements imposed by § 4 of the Act, 22 U. S. C. §614. App. 18.
The NFBC (New York office) has been registered with the Attorney General as an agent of a foreign principal, the NFBC, since 1947, pursuant to 22 U. S. C. § 612. Second Declaration of Joseph E. Clarkson ¶4, App. 57.
The films are entitled If You Love This Planet, Acid Rain: Requiem or Recovery, and Acid From Heaven. The first film concerns “the environmental effects of nuclear war.” Complaint ¶1, App. 10. “Acid rain” is formed when nitrogen oxides and sulfur dioxide, products of fossil fuel combustion, are discharged into the atmosphere; converted to sulfates, nitrates, sulfuric acids, and nitric acids through various chemical reactions; and then deposited as precipitation. See 1 F. Grad, Treatise on Environmental Law §2.09, pp. 2-578 to 2-579 (1986).
Keene v. Smith, 569 F. Supp., at 1518, 1522. The District Court found that appellee lacked standing to challenge the labeling requirement that the Act imposes on the agent of the foreign principal. Id., at 1519. That ruling is not now before this Court.
Title 22 U. S. C. § 614(a) provides:
“Every person within the United States who is an agent of a foreign principal and required to register under the provisions of this subchapter and who transmits or causes to be transmitted in the United States mails or by any means or instrumentality of interstate or foreign commerce any political propaganda for or in the interests of such foreign principal (i) in the form of prints, or (ii) in any other form which is reasonably adapted to being, or which he believes will be, or which he intends to be, disseminated or circulated among two or more persons shall, not later than forty-eight hours after the beginning of the transmittal thereof, file with the Attorney General two copies thereof and a statement, duly signed by or on behalf of such agent, setting forth full information as to the places, times, and extent of such transmittal.”
Section 614(b) provides:
“It shall be unlawful for any person within the United States who is an agent of a foreign principal and required to register under the provisions of this subchapter to transmit or cause to be transmitted in the United States mails or by any means or instrumentality of interstate or foreign commerce any political propaganda for or in the interests of such foreign principal (i) in the form of prints, or (ii) in any other form which is reasonably adapted to being, or which he believes will be or which he intends to be, disseminated or circulated among two or more persons, unless such political propaganda is conspicuously marked at its beginning with, or prefaced or accompanied by, a true and accurate statement, in the language or languages used in such political propaganda, setting forth the relationship or connection between the person transmitting the political propaganda or causing it to be transmitted and such propaganda; that the person transmitting such political propaganda or causing it to be transmitted is registered under this subchapter with the Department of Justice, Washington, District of Columbia, as an agent of a foreign principal, together with the name and address of such agent of a foreign principal and of such foreign principal; that, as required by this subchapter, his registration statement is available for inspection at and copies of such political propaganda are being filed with the Department of Justice; and that registration of agents of foreign principals required by the subehapter does not indicate approval by the United States Government of the contents of their political propaganda. The Attorney General, having due regard for the national security and the public interest, may by regulation prescribe the language or languages and the manner and form in which such statement shall be made and require the inclusion of such other information contained in the registration statement identifying such agent of a foreign principal and such political propaganda and its sources as may be appropriate.”
The poll was entitled Gallup Study of The Effect of Campaign Disclosures on Adults’ Attitudes Toward Candidates (July, 1984). App. 78-98. The study was based on a telephone survey, in which five questions were posed to a representative national sample of adults. The questions tested the effect that publicizing various events associated with a candidate running for the state legislature would have on his candidacy. One of the surveyed events was that the political candidate.“arranged to show to [the] public three foreign films that the Justice Dept, had classified as ‘Political Propaganda.’” App. 86. The poll concluded that if this event occurred, 49.1% of the public would be less inclined to vote for the candidate. Ibid,.; see also id., at 93-94 (sampling tolerances; 95% confidence level that sampling error is less than four percentage points).
After examining the survey data, the survey research practitioner who had designed the survey concluded that the charge of showing political propaganda “would have a seriously adverse effect on a California State Legislature candidate’s chances [for election] if this charge were raised during a campaign.” Declaration of Mervin Field ¶5, App. 69. The District Court found that this declaration, “neither rebutted nor impeached by the defendants, establishes beyond peradventure of a doubt that whoever disseminates materials officially found to be ‘political propaganda’ runs the risk of being held in a negative light by members of the general public.” 619 F. Supp. 1111, 1124 (1985) (footnote omitted). In addition, a principal political fundraiser and adviser to appellee, Harry Bistrin, stated: “I have no doubt but that some members of the North Coast [of California] press, present political adversaries, and future opponents, would openly seize upon the opportunity to utilize the government’s reporting, dissemination and label requirements under [the Act] to their benefit by portraying the plaintiff as a disseminator of ‘foreign political propaganda.’ For these reasons the plaintiff has a compelling interest, perhaps more than most citizens, to ensure that the exercise of his first amendment rights does not ‘boomerang’ to be utilized as a deadly weapon against him in his political career.” Declaration in Support of Plaintiff’s Motion for a Preliminary Injunction, App. 30.
“Designating material as ‘political propaganda,’... denigrates the material and stigmatizes those conveying it, in a manner that mere designation of the material as ‘political advocacy’ would not. It is my professional judgment that knowledge of such a designation would be extremely likely to deter persons from viewing or reading such materials and, diminish and/or slant its communicative value, in a manner likely to make the reader or viewer suspicious of the material, far less likely to credit it or accept its conclusions.” Declaration of Leonard W. Doob ¶ 9, App. 103. The declar-ant is Senior Research Associate and Sterling Professor Emeritus of Psychology at Yale University.
See Block v. Meese, 253 U. S. App. D. C. 317, 322, 793 F. 2d 1303, 1308 (1986) (sole distributor of If You Love This Planet has standing to challenge classification of film as “political propaganda”; potential customers declined to take the film because of the classification).
See, e. g., Webster’s Third New International Dictionary 1817 (1981 ed.) (“doctrines, ideas, argument, facts, or allegations spread by deliberate effort through any medium of communication in order to further one’s cause or to damage an opposing cause”).
See, e. g., Webster’s New World Dictionary, College Edition 1167 (1968) (“now often used disparagingly to connote deception or distortion”); The New Columbia Encyclopedia 2226 (1976) (“[A]lmost any attempt to influence public opinion, including lobbying, commercial advertising, and missionary work, can be broadly construed as propaganda. Generally, however, the term is restricted to the manipulation of political beliefs”).
Brief for Appellee 20.
See 619 F. Supp., at 1125.
The risk of this reputational harm, as we have held earlier in this opinion, is sufficient to establish appellee’s standing to litigate the claim on the merits. Whether the risk created by the Act violates the First Amendment is, of course, a separate matter. The crux of the District Court’s analysis of this latter issue is set forth in this paragraph:
“With respect to the evidentiary question — does the phrase ‘political propaganda,’ when officially applied by officials of the United States Department of Justice, abridge speech — the Court has little difficulty. The declaration supplied by Mervin Field, neither rebutted nor impeached by the defendants, establishes beyond peradventure of a doubt that whoever disseminates materials officially found to be
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
Ernest Wolfgang BRAUCH, Petitioner, Appellant, v. Robert RAICHE, United States Marshal, Respondent, Appellee.
No. 79-1606.
United States Court of Appeals, First Circuit.
Argued Jan. 11, 1980.
Decided March 5, 1980.
Nancy Gertner, Boston, Mass., with whom Harvey A. Silverglate, Silverglate, Shapiro & Gertner, Boston, Mass., Alan Dershowitz, Cambridge, Mass., John Blackburn-Gittings, and Hallinan, Blackburn-Git-tings & Co., London, England, were ■ on brief, for appellant.
Robert J. Lynn, Asst. U. S. Atty., Concord, N.H., with whom William H. Shaheen, U. S. Atty., Concord, N.H., was on brief, for appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
COFFIN, Chief Judge.
Ernest Wolfgang Brauch was arrested in Vermont on July 9, 1979, pursuant to the provisional arrest procedures of Article VIII(l) of the Extradition Treaty between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland (“the Treaty”). As required by the Treaty, the government of the United Kingdom subsequently filed a formal request for Brauch’s extradition. On September 13, 1979, a hearing on the extradition request was held before a federal magistrate in New Hampshire. Sitting as a committing magistrate under 18 U.S.C. § 3184, the magistrate found Brauch extraditable on three separate sets of charges and issued a Certificate of Extraditability and Order of Commitment on October 18, 1979. Brauch then brought a petition for habeas corpus in the district court for the District of New Hampshire seeking relief from the magistrate’s order. The district court denied Brauch’s petition on November 2, 1979, and he brought this appeal. The magistrate’s Certificate of Extraditability has been stayed pending the outcome of this appeal.
The Facts
The United Kingdom’s extradition request set forth charges against Brauch for violating three provisions of the English criminal laws: seven counts of violating section 16(1) of the Theft Act of 1968 (the “check charges”); three counts of violating section 6(1) of the Forgery Act of 1913 (the “forgery charges”); and ten counts of violating section 15(1) of the Theft Act of 1968 (the “currency charges”). These charges arise out of two independent series of transactions engaged in by Brauch in 1974 and 1975. The formal request for extradition included the English depositions and exhibits upon which these charges were based, and at the hearing before the magistrate the government presented these exhibits and depositions in support of its petition for an extradition certificate. The factual allegations and the*" English charges resulting from them may be summarized as follows.
A. The Commodities Transactions
From 1967 through 1974, Brauch was engaged in commodities trading on the London Commodities Terminal Markets. At different times during this period Brauch maintained trading accounts at five London brokerage houses in the names of several different trading companies. To open these trading accounts, Brauch was required to make deposits to cover the cost of the initial dealings. Thereafter, if the value of the commodities purchased for the account declined due to market fluctuations, Brauch would receive a “margin call” requiring him to deposit additional funds to cover the decreased value of the assets held by his account.
In 1974 the commodities markets suffered a period of sharp decline. On January 3, 1974, Anthony Gibbs Commodities, Ltd., with whom Brauch had been trading since 1967, made a margin call on the account of one of Brauch’s trading companies, Commodities Investment Trust. Brauch responded by sending Gibbs a check for £80,-000 drawn on the account of another of Brauch’s companies, Neptune Finance, Ltd. The check did not clear, however, and when no further funds were forthcoming, Gibbs, closed out Brauch’s trading accounts, which by then had a deficit of £55,000 owing to Gibbs.
Brauch had also traded since 1967 with the brokerage firm of E. Bailey & Company, Ltd. Although Brauch had had difficulties meeting deficiencies in his account during 1973, Bailey allowed him to open a new account and commence trading under the name of Commodities Investment Trust, with the account personally guaranteed by Brauch. On May 15, 1974, Brauch wrote a check drawn on Neptune Finance to Bailey for £103,000 to meet a margin call, but the bank refused to honor the check for want of proper signature. On May 22, in response to a second margin call, Brauch gave Bailey a check for £300,000, signed by one M. Fulton and drawn on the account of Skokie Investments, Ltd., at the Bank of Montreal in the Bahamas. Brauch told Bailey that the check represented proceeds from the sale of some property to Fulton. When Bailey attempted to cash the check, however, it was informed that there were no funds in the Skokie account. Bailey finally closed out Brauch’s account and liquidated his holdings in mid-June, resulting in a deficit of £527,825.
As a result of the allegedly bad checks issued to Gibbs and Bailey, and similar incidents regarding accounts opened during 1974 at G. W. Joynson & Company, Ltd., M. L. Doxard & Company, and Cometco Investments, Ltd., an indictment was returned against Brauch charging seven counts of “obtaining pecuniary advantage, namely the evasion of a debt” by means of “deception”, in violation of section 16(1) of the Theft Act of 1968 (the check charges). The theory underlying these charges, accepted by the magistrate at the commitment hearing, is that by issuing these checks, Brauch was able to engage in further trading by forestalling his brokers from closing out his accounts. Moreover, as a consequence- of their delay in liquidating Brauch’s accounts, which in turn resulted from their reliance' on Brauch’s assurances that the checks he had presented would be honored, the brokers suffered additional losses between the time of their margin calls and liquidation.
The forgery charges arise out of Brauch’s dealings with one of these brokers, Cometco Investments, Ltd. As a precondition for allowing Brauch, acting through the name of Histon Developments, Ltd., to establish a trading position, Cometco had demanded that Brauch deposit £84,000. On August 5, 1974, Brauch delivered a check in that amount drawn on the account of Skokie Investments at the Bahamas branch of the Bank of Montreal. On August 7, Cometco learned that the check would not clear and demanded a telex confirmation from the bank that the funds would be received or else Brauch’s trading position would be closed out. That same day Cometco received a telex from Skokie Investments assuring it that the proceeds of the check would be paid by August 13 or 14. On August 9, with Brauch’s account showing a deficit of £20,000, Cometco again asked for assurances. Brauch reported that the London office of the Bank of Montreal had received a telex that the £84,000 was being sent forthwith. When Cometco confirmed that this telex had been received, it once again permitted Brauch to maintain an active trading account. Finally, after Comet-co still had not received the funds by August 15 and Brauch now faced a £60,000 margin call, the Bank of Montreal in London received a third telex stating that the funds were en route to London. Cometco never received the funds, however, and finally closed Brauch’s account on August 20, 1974.
These three telexes form the basis of the three counts of uttering forged documents in violation of section 6(1) of the Forgery Act of 1913. The magistrate, after reviewing the evidence before him, concluded that neither Skokie nor the Bank of Montreal had sent any of the three telexes and therefore that Brauch had “sent or caused to be sent” the telexes.
B. The Currency Transactions
The events forming the basis of the currency charges against Brauch occurred while the Exchange Control Act of 1947 was in force in England. The Act sought to freeze the amount of foreign investments held by residents of England by restricting the flow of money out of the country. The Act created two classes of foreign currency — that subject to the restriction on exportation, and a second class, which came to be known as “investment currency”, that could be invested abroad without obtaining special permission from the Bank of England. Because investment currency could be invested abroad, a market developed for this currency. It was sold at a premium over the exchange rate for ordinary restricted currency. Since all currency looked alike, a system evolved in which “authorized depositories” would certify appropriate currency as being investment currency. Once certified, such currency could be freely traded on the currency market at a premium.
In 1974 Brauch approached a firm of English solicitors and requested that they prepare a power of attorney to him from one Christina Reigleuth,'a British citizen. Using this power of attorney, apparently with a forged signature, Brauch approached one William Crossley of the accounting firm of W. O. Crossley & Co. to sell, purportedly on Reigleuth’s behalf, a packet of Grand Cayman bonds. Under then-prevailing law, if the bonds had been owned by a resident of the United Kingdom continuously since 1972, the proceeds from the sale of the bonds would issue in investment currency. Thus, by representing that Ms. Reigleuth, not himself, was the owner of the bonds, Brauch was able to secure premium-worthy investment currency from the sale. On a number of occasions from December, 1974, through early 1975, using similar means, Brauch arranged to exchange foreign securities or currency for investment currency by convincing Crossley and others to assure authorized depositories (London banks) that the currency was worthy of certification. Once these proceeds were certified, Brauch was able to convert the currency into pounds sterling on the money markets at the premium rate. During this period, Brauch realized a net sum of £2,500,000 from such transactions.
Brauch was indicted under both the Exchange Control Act and section 15(1) of the Theft Act of 1968 for each of ten such transactions. The basis for the charges under the Theft Act is that Brauch dishonestly obtained from the Midland Bank British pounds sterling by falsely representing that the currency he offered in exchange was investment currency.
Requirements for Extradition Under the Treaty
As a threshold matter, we note that habeas corpus review of a magistrate’s extradition order is more limited than direct appeal, which is not available in extradition cases. Greci v. Birknes, 527 F.2d 956, 958 (1st Cir. 1976). The scope of our inquiry, therefore, is limited to determining “whether the magistrate had jurisdiction, whether the offense charged is within the treaty and by a somewhat liberal construction, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.” Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925). Although appellant asserts that he is entitled to relief under each of these grounds for habeas corpus, the heart of his argument is that the magistrate misapplied the choice of law and “double criminality” principles embodied in the Treaty in determining whether the offenses charged were extraditable.
Article III of the Treaty provides: “(1) Extradition shall be granted for an act or omission the facts of which disclose an offense within any of the descriptions listed in the Schedule annexed to this Treaty, which is an integral part of the Treaty, or any other offense, if:
(a) the offense is punishable under the laws of both parties by imprisonment or other form of detention for more than one year or by the death penalty;
(b) the offense is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this Treaty applies by virtue of sub-paragraph (l)(a) of Article II; and
(c) the offense constitutes a felony under the law of the United States of America.”
This section of the Treaty imposes on all extraditable offenses a requirement of “double criminality” — that is, an offense for which extradition is sought must be a serious crime punishable under the laws of both countries. The requirement that the acts alleged be criminal in both jurisdictions is central to extradition law and has been embodied either explicitly or implicitly in all prior extradition treaties between the United States and Great Britain since the Jay Treaty of 1794. See Collins v. Loisel, 259 U.S. 309, 311, 42 S.Ct. 469, 470, 66 L.Ed. 956 (1922) (construing the Webster-Ashburton Treaty of 1842).
Two interpretive difficulties arise from the double criminality concept: when extradition is sought from the United States, what law should the extradition magistrate apply in determining whether the double criminality test is satisfied; and what degree of congruity is required between the corresponding English and American criminal offenses? The magistrate in this case determined extraditability by reference to federal criminal law and to the law of New Hampshire, the “asylum state”. Referring to these two bodies of law, the magistrate found that the acts that formed the basis for appellant’s indictments in England also constituted violations of analogous criminal provisions under United States law. Appellant argues that the magistrate erred both in his choice of law and in his eongruity analysis.
A. Choice of Law
Under appellant’s view of the proper extradition procedure, the Treaty language “punishable under the laws of both Parties” requires a magistrate to look first to federal law and then, if there is no federal provision comparable to the offense for which extradition is sought, to state law representing a consensus view of the states. New Hampshire law, he argues, is “idiosyncratic” and therefore inappropriate for determining extraditability under a treaty that refers not to the “law of the place where the fugitive is found”, but to the. “law of the United States”.
The Supreme Court decisions construing the predecessor treaties between the United States and Great Britain, while venerable, are hardly clear in defining the proper approach to the choice of substantive law for the purposes of determining extraditability. In Wright v. Henkel, 190 U.S. 40, 28 S.Ct. 781, 47 L.Ed. 948 (1903), the Court noted that it was the law of the states to which courts were to refer for “specific definitions” of the crimes subject to extradition. Construing a provision requiring that the offense for which extradition was sought be a crime “[against] the laws of both countries”, the Court stated: “[W]hen by the law of Great Britain, and by the law of the State in which the fugitive is found [the' acts] are made criminal, the case comes fairly within the treaty....” Id. at 61, 23 S.Ct. at 786. See also Collins v. Loisel, supra (assuming that the asylum state’s law was controlling); Kelly v. Griffin, 241 U.S. 6, 36 S.Ct. 487, 60 L.Ed. 861 (1916).
In Factor v. Laubenheimer, 290 U.S. 276, 54 S.Ct. 191, 78 L.Ed. 315 (1933), the Court addressed the choice of law principle implicit in Wright and Collins that extraditability could be established only on the basis of the asylum state’s law. Examining the provisions of the extradition treaty with Great Britain then in force, the Court found that with respect to those offenses enumerated in the treaty, the United States and Great Britain had agreed that such offenses were “generally recognized as criminal in both countries” and that the only inquiry into the criminality of the acts alleged was that “necessary to make certain that the offense charged is one named in the treaty.” Id. at 300, 54 S.Ct. at 198. The Court held, therefore, that absent an express requirement that the enumerated offenses be criminal under the laws of the asylum state, a fugitive could not escape extradition by showing that such an offense would not be punishable under that state’s law. Id.
Although it is clear that Factor held criminality in the asylum state was not a necessary precondition to extraditability, it is not clear whether the Court also meant that a finding of criminality under that state’s law was always sufficient to justify extradition. Part of the rationale offered by the Court for its decision in Factor was a desire to avoid construing that treaty so that “the right to extradition from the United States may vary with the state or territory where the fugitive is found.” Id. at 300, 54 S.Ct. at 198. The Court was concerned that the treaty be construed so as to secure the intended equality and reciprocity between the parties. Id. at 293, 54 S.Ct. at 195. In light of the importance the Court placed on preserving reciprocity, we do not believe the Court’s disapproval of extraditability varying with state law would extend to the situation in which one state’s law might confer extraditability, while that of the preponderance of the states would not. A prerequisite under the Treaty for an extradition request by Great Britain is that the offense be one for which Britain would be willing to extradite. Thus, even if the asylum state from which Britain requests extradition is the only state criminalizing the conduct in question, the policy of reciprocity would be served since that state could presumably obtain extradition for the same acts from Britain.
Appellant notes that the trend of modern extradition treaties, in response to the growth of a body of federal and more uniform state substantive law, has been to include provisions referring to the law of the United States rather than to the law of the individual asylum state. Concomitant with this trend, appellant argues, recent cases have declined to apply asylum state law when treaty provisions refer to the law of the United States. Appellant finds particular support for this argument in our decision in Greci v. Birknes, supra, 527 F.2d 956. In Greci we construed the probable cause requirement of the 1973 extradition treaty between the United States and Italy, which requires that there be sufficient evidence to justify the fugitive’s commitment for trial under the law of “the requested Party”. We concluded that the reference to the law of the requested party mandated application of the federal probable cause standard.
We do not view our holding in Greci as controlling in this case. Greci concerned both a different treaty and a different problem. In reaching our conclusion in that case, we noted that during the negotiation sessions prior to adoption of that treaty the parties specifically sought to avoid a probable cause standard that would vary depending on the state from which extradition was sought. 527 F.2d at 958-59 & n. 5. Appellant offers no evidence that the framers of this Treaty intended the adoption of the “laws of both Parties” language in Article III to require that the magistrate base his finding of extraditability solely on a consideration of federal or consensus state law. Moreover, the probable cause provision construed in Greci, which is identical to that contained in Article IX of this Treaty, is procedural. See Factor v. Laubenheimer, supra, 290 U.S. at 290-91, 54 S.Ct. at 194. The considerations that would militate in favor of a uniform procedural rule do not necessarily apply to construction of provisions involving choice of substantive law. Application of federal procedural standards in no way impinges on the objective of reciprocity. Indeed, in Shapiro v. Ferrandina, supra, 478 F.2d at 910 n. 18, Judge Friendly noted that referring to state law for “delineating substantive elements of a crime” and to federal law for corollary matters was “quite reasonable”.
We find neither the Supreme Court precedents nor the recent cases construing similar extradition treaties to be dispositive of the choice of law question in this case. While Wright v. Henkel, supra, on its face appears to command resort to the law of the asylum state, it was decided under a view of federal criminal law as nonexistent and state law as nonuniform — a situation far removed from the present state of criminal law. We do find guidance, however, in the policy that has consistently informed the Supreme Court’s approach to extradition cases. In Factor v. Laubenheimer, supra, 290 U.S. at 293-94, 54 S.Ct. at 195-96, the Court stated that narrow construction of extradition treaties is inconsistent with the principle underlying international agreements of this nature. Thus, the Court said, when faced with competing constructions of such a treaty, that construction should be adopted that enlarges the rights of the parties under the treaty. We hold, therefore, that the magistrate correctly relied on the law of the asylum state, New Hampshire, in determining the extraditability of Brauch for the offenses charged, regardless of whether that law represents the law of the preponderance of the states.
B. Comparability of Offenses
Appellant argues that in addition to determining extraditability by reference to the wrong substantive law, the magistrate did not apply a rigid enough congruity analysis to the offenses for which the government seeks extradition. Specifically, appellant asserts that the magistrate should have determined not only if appellant’s acts would be considered criminal in the United States as well as in England, but that he should also have compared each English offense with a corresponding American offense and determined that the elements, purposes, and punishments of those offenses were “substantially analogous”. According to appellant’s theory, if provisions defining two offenses punish similar conduct but differ in the scope of their liability, the double criminality requirement is not satisfied.
The Supreme Court decisions on this issue do not support the view advanced by appellant. In Collins v. Loisel, supra, 259 U.S. 309, 42 S.Ct. 469, 66 L.Ed. 956, the appellant argued that the offense for which India sought extradition, “cheating”, which could be based on a false representation of performance of some future act, was not comparable to the offense of false pretenses under Louisiana law because the latter offense required a misrepresentation of a past or present fact. The Court rejected this argument, stating:
“The law does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions.” Id. at 312, 42 S.Ct. at 471.
Similarly, in Kelly v. Griffin, supra, 241 U.S. 6, 36 S.Ct. 487, 60 L.Ed. 861, Canada had requested extradition for charges of perjury. Under Canadian law, conviction of the crime of perjury did not require proof that the false statements were material, while under the law of the asylum state, Illinois, materiality was a necessary element of the offense. The Court found no significance, however, in the mere possibility that some false statements might fall within the scope of the Canadian law that would not constitute perjury in Illinois. Id. at 14, 36 S.Ct. at 489. Because the statements on which the Canadian charges were based were “highly material” and there was “no attempt to go beyond the principle common to both places”, the Court upheld the extradition order. Id. at 14-15, 36 S.Ct. at 489.
We find Judge Friendly’s opinion in Shapiro v. Ferrandina, supra, 478 F.2d 894, on which appellant relies for the proposition that extradition can be based only upon the comparability of the offenses rather than the mutual criminality of the acts on which they are based, to be distinguishable. Invoking the “rule of specialty”, which provides that a fugitive may not be tried by the requesting country for any offenses other than those for which extradition was granted, Judge Friendly scrutinized the elements of each of the crimes for which the Israeli government had requested extradition and demanded strict correspondence of each charge to some felony under United States law. This approach was prompted by a concern that “the multiple characterizations of the acts charged raise potential problems of greatly increased punishment through successive sentences.” Id. at 909. In this case, however, Great Britain has sought extradition for only a single offense for each of the alleged acts of appellant. We agree that under the principle of specialty, which is incorporated in Article XII of the Treaty, we must examine the extraditability of each of the offenses in the extradition request. But we hold that this requires us only to determine that the acts upon which the English charges are based are proscribed by similar criminal provisions of federal law, New Hampshire law, or the law of the preponderance of the states.
The Check Charges. The check charges in the English indictment were based upon appellant’s alleged use of bad checks to gain a “pecuniary advantage, namely the evasion of a debt.” The magistrate found that the appellant’s scheme to forestall the liquidation of his commodities trading accounts would constitute a felony under both the New Hampshire consolidated theft statute, R.S.A. 637:4, and the New Hampshire bad check statute, R.S.A. 638:4. Appellant argues that neither of these New Hampshire offenses is comparable to the English offense of engaging in deception to gain a pecuniary advantage, since the latter punishes conduct that would not be criminal under the New Hampshire provisions. Our inquiry, however, is not whether all conduct punishable under the English theft act would be criminal under these statutes, but whether the particular conduct in this case is made criminal under both countries’ laws. Moreover, we need not analyze each of the statutory provisions under which appellant’s acts might be deemed criminal; it is sufficient that there be one such comparable offense. We find that with respect to the check charges, appellant’s conduct falls within the literal scope of R.S.A. 638:4, the New Hampshire bad check statute, and therefore prima facie satisfies the double criminality requirement of the Treaty. 1.
Although we do not accept appellant’s argument that strict congruity of offenses is necessary to meet the test of 'double criminality, we agree that the offenses of the two countries must be substantially analogous. In this instance both of the provisions — section 16(1) of the English theft act and R.S.A. 638:4 — punish conduct similar to the Treaty offense of obtaining property by false pretenses. Appellant argues that the acts alleged involved no deprivation of property, but merely the postponement of a preexisting debt. However, the record indicates that appellant’s check-kiting resulted in greater losses to his brokers than they would have suffered if they had liquidated his holdings at the time of their first margin calls. Because the market value of the commodities credited to Brauch’s accounts was falling, when his brokers relied on the soundness of his checks written to meet the margin calls on those accounts they were in effect advancing him additional credit. Appellant obtained more than just the postponement of a debt; he gained the opportunity to continue speculating in the market and possibly reaping a profit, while his brokers bore the full risk of any further losses. Both the opportunity and the risk constituted something of value. Both the English theft act provision covering evasion of a debt and the New Hampshire bad check statute in this instance punish conduct falling within the broad scope of the offense of obtaining property by false pretenses. See generally W. LaFave & A. Scott, Handbook on Criminal Law §§ 90, 92 (1972).
2. The Forgery Charges. The forgery counts in the English indictment, charging appellant with uttering forged documents, on their face fall within the schedule of Treaty offenses, which includes “an offense relating to counterfeiting or forgery”. The magistrate found that appellant’s acts forming the basis of these charges, sending or causing to be sent telexes to Cometco’s London bank assuring it that the check tendered by appellant was backed by sufficient funds, would constitute an offense under both the federal wire fraud statute, 18 U.S.C. § 1343, and the New Hampshire forgery law, R.S.A. 638:1. Appellant argues that the offense of federal wire fraud is completely different from that of forgery, sharing only the single common element of fraud, and therefore cannot satisfy the double criminality standard. With respect to the New Hampshire forgery law, he argues that the forged telexes he allegedly “uttered”'are not within the class of documents the forgery of which constitute a felony under that statute. We find, however, that the magistrate was correct in holding that appellant’s acts come within the reach of the New Hampshire forgery law.
Section 638:1 III provides that the utterance of a forged writing with intent to defraud is a class B felony under the statute if the “writing” is or purports to be “a check, an issue of stocks, bonds, or any other instrument representing an interest in or a claim against property, or a pecuniary interest in or claim against any person or enterprise.” The crucial question is whether the telexes informing the London branch of the Bank of Montreal that funds credited to Cometco’s account were en route to London constituted documents representing a pecuniary interest in property or a claim against the bank. We agree with the government’s contention that if the telexes had been genuine, it is likely that Cometco would have had a cause of action against the Bank of Montreal based on its.detrimental reliance on the telexes. While neither party has cited New Hampshire case law that allows us to predict with certainty whether uttering these telexes would constitute felonious forgery under R.S.A. 638:1, we are satisfied that the appellant’s conduct is sufficiently within the scope of that statute to meet the double criminality requirement.
3. The Currency Charges. The government’s argument for extradition for appellant’s acts in connection with his currency transactions rests solely on the English charges that these transactions were violative of section 15(1) of the Theft Act of 1968. The magistrate found the double criminality test satisfied because the acts supporting these charges would also have constituted felonies under the New Hampshire theft statute, R.S.A. 637:4. Appellant argues that even though the English charges are denominated violations of that country’s theft act, they rest solely on the alleged violations of the Exchange Control Act, which was enacted to further monetary policies peculiar to Great Britain and has no analogue in American law. Thus, appellant’s brief asserts that “but for the system of exchange controls, Brauch would have been a shrewd business man.” We reject this argument. The significant common element in section 15(1) of the Theft Act of 1968 and R.S.A. 637:4 is “deception”. It is depriving another of property by means of deception that both statutes proscribe as criminal behavior. We do not think that the double criminality requirement extends so far as to require that the reason particular conduct constitutes deception be some substantive law common to both jurisdictions.
Appellant argues further that the currency transactions could not constitute deprivation of property by deception because there was no victim of the deception; no private individual suffered any loss as a result of his fiscal chicanery. He bases this contention on the workings of the Exchange Control Act, which provided that once currency had been certified as “investment currency” it could not thereafter be “unscrambled” from other legitimate currency. Thus, he argues, the initial purchaser from appellant, arid any subsequent purchasers, got exactly what they bargained for: fungible investment currency. The magistrate rejected this argument, holding that there need not be any immediate loss to an identifiable victim, but only the potential for such loss. Because he found in the regulations promulgated under the Exchange Control Act the authority to “unscramble” fraudulent transactions such as those allegedly engaged in by appellant, he concluded that there was a theoretical victim of appellant’s scheme.
We do not find the magistrate’s “theoretical victim” scenario convincing. Nor can we accept the government’s argument that the double criminality requirement is satisfied because the currency scheme comes within the ambit of the crime of obtaining property by false pretenses. It is true that there is some authority for the government’s assertion that the crime of false pretenses does not require that the person from whom the property is obtained (in this case, those individuals who exchanged their pounds sterling for appellant’s falsely certified investment currency) suffer any financial loss. See United States v. Rowe, 56 F.2d 747, 749 (2d Cir. 1932); W. LaFave & A. Scott, Handbook on Criminal Law 669-70 & n. 97 (1972). In this case, however, both the English statute under which appellant was charged and the comparable New Hampshire statute criminalize the “deprivation” of another person’s property. While those who purchased investment currency from appellant may have been deceived, the facts do not support a finding that they suffered any deprivation of property; they appear to have obtained precisely what they paid for. We conclude that since the particular conduct in this case is not criminal under either section 15(1) of the Theft Act of 1968 or under R.S.A. 637:4, appellant is not extraditable on these charges.
C. Probable Cause
Article IX(1) of the Treaty provides that “[e]xtradition shall be granted only if the evidence be found sufficient according to the law of the requested Party. to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party.” The magistrate stated explicitly the evidentiary basis for his findings of extrad
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_respond1_1_4
|
L
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
BOOTH v. HAGGARD et al.
No. 14105.
United States Court of Appeals Eighth Circuit.
Oct. 17, 1950.
Fred Louis, Jr., Harlan, Iowa (Bennett Cullison, Harlan, Iowa, was with him on the brief), for appellant.
Luke E. Linnan, Algona, Iowa (Joe E. Lynch, Algona, Iowa, was with him on the-■brief), fo-r appellees.
Before GARDNER, Chief Judge, THOMAS, Circuit Judge, and DEWEY, District. Judge.
THOMAS, Circuit Judge, delivered the-opinion of the Court.
This is a suit for an injunction and for damages and profits for the alleged infringement of a copyright under the Act of' July 30, 1947, c. 391, 61 Stat. 652, 17 U.S. C.A. § 101. The defendants moved for judgment on the pleadings on the ground that Exhibit 1 attached to plaintiff’s petition and made a part thereof, being a copy of' plaintiff’s alleged copyrighted book, shows conclusively that the title page is on the front cover of the book and that no notice-of copyright has been applied on the title-page or on the page immediately following-as required by 17 U.S.C.A. § 20.
Upon the filing of the motion the court announced that it would regard and treat the motion as a motion for summary judgment and that the parties should and could introduce evidence bearing upon the issue-of copyright, which issue was presented by the pleadings. The parties thereupon introduced in evidence a copy of the book: claimed by plaintiff to have been infringed: by defendants.
The court made findings of fact and conclusions of law and entered Judgment for defendants, and plaintiff appeals.
The court found that plaintiff received a certificate of registration from the Register of Copyrights of the United States 'for the book involved dated June 22, 1948; that the title of the publication claimed to have been infringed is stated in the complaint to be “1948-49 Kossuth County TAM Service”; and that no other title 'is given in the complaint ; that the only place where the quoted title appears in the book is on the leaf which constitutes the front cover of the book; that the leaf which 'constitutes the front cover of the book is the title page thereof; and that no notice of copyright was given by plaintiff on the title page nor o.n the page immediately following on any copy of the book claimed to 'be infringed.
And the court concluded that the notice of copyright given did not comply with the provisions of 17 U.S.C.A. § 20; and that failure to comply therewith prevents the plaintiff from recovering and is determinative of the case.
The parties agree that the only question for decision is whether the title page of plaintiff’s book is page 3, as claimed by plaintiff, or the front cover, as found by the court and claimed by defendants.
'Title 17 U.S.C.A. § 20 provides: “The notice of copyright shall be applied, in the case of a book or other printed publication, upon its title page or the page immediately following * * *. One notice of copyright in each volume * * * published shall suffice.”’
While a slight variation from the form of notice may not be fatal there must be no substantial deviation. To be legally effective the notice must satisfy the prescriptions of the statute. Advertisers Exchange, Inc., v. Anderson, 8 Cir., 144 F.2d 907; Higgins v. Keuffel, 140 U.S. 428, 434, 11 S.Ct. 731, 35 L.Ed. 470; Mifflin v. R. H. White Company, 190 U.S. 260, 264, 23 S.Ct. 769, 47 L.Ed. 1040.
The plaintiff contends that the court erred: (1) in determining the title of the book; (2) in holding that the only place -where the title appears is on page 1, or the front cover page; (3) that the front cover is the title page; and (4) that no notice of copyright was given by plaintiff on the title page.
The only evidence before the court was a copy of the book itself. The court’s findings are based upon the complaint and the copy of the book in evidence. The book is a comparatively small book bound with a paper cover.
In paragraphs 2 and 5 of the complaint it is averred that the book is entitled: “1948-49 Kossuth County TAM Service.”
On the front cover is printed in bold type:
“1948-1949
“Kossuth County, Iowa
“TAM Service.”
The inside of the front cover contains no printed matter. Page 1 contains a map of Kossuth County, Iowa, only. Page 2 is blank, containing no printed matter.
Page 3 contains a full page of printed text at the top of which appears in lower case type what plaintiff contends is the title, as follows:
“The 1948-1949
“Rural TAM
“For Kossuth County, Iowa.”1
At the bottom of this page is the copyright notice as follows: “Copyright 1948, R. C. Booth Enterprises, Harlan, Iowa.”
In determining whether the front cover page or page 3 of the book is the title page the court of necessity was required to consider the printed texts of those pages and the arrangement of the printed matter thereon and their general appearance. And since there was a substantial difference between them in every respect the court was justified in considering the claim of plaintiff set out in the complaint. Applying these tests, we cannot say that the finding that the front cover page is the title page is erroneous. The finding is supported by substantial evidence and is in accord with the averments of the complaint. In this situation the plaintiff should not be heard to complain. Toksvig v. Bruce Pub. Co., et al., 7 Cir., 181 F.2d 664, 666.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
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songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Esther Lee SMITH, Appellant, v. HUMBLE OIL AND REFINING COMPANY, Appellee.
No. 11929.
United States Court of Appeals Fourth Circuit.
Argued March 6, 1968.
Decided Aug. 7, 1968.
Henry Hammer, Columbia, S. C. (J. Carlisle Oxner, Jr., Columbia, S. C., on brief), for appellant.
George E. Lewis, Columbia, S. C. (Turner, Padget, Graham & Laney, Columbia, S. C., on brief), for appellee.
Before' BOREMAN, CRAVEN and BUTZNER, Circuit Judges.
BOREMAN, Circuit Judge:
This is an appeal in a diversity action involving plaintiff’s claim for damages arising from a collision between two motor vehicles at the intersection of two streets in Columbia, South Carolina. A jury trial resulted in a verdict for the defendant, Humble Oil and Refining Company, and plaintiff, Mrs. Smith, contends that the court erred in refusing to charge the jury with respect to certain South Carolina statutes which she contends are relevant in determining the question of negligence. Upon consideration of the record, including a street plat and photographs of the intersection filed as exhibits, and the statutes in question, we conclude that the court’s refusal to charge with respect to these statutes was not error.
Bull Street runs north and south and is intersected from the west by Elm-wood. Elmwood terminates at Bull Street and does not continue through the intersection. However, across Bull Street from Elmwood are the entrance and exit driveways to and from the South Carolina State Hospital.
Por some distance west of the intersection Elmwood Avenue is seven lanes wide. Separating eastbound from westbound traffic lanes is a dividing strip of concrete construction extending above the street surface. This strip does not run continuously in the center of Elmwood the full length of the block, but at a point some little distance from Bull Street it is positioned to the left in such a fashion as to create an additional traffic lane for the use of eastbound motorists desiring to make a left turn to the north into Bull Street. Thus, Elm-wood at its terminus at Bull Street has four lanes for eastbound and three lanes for westbound traffic. Bull Street, also with a raised center concrete strip, is a two-way street with two lanes for traffic in each direction at the area of its intersection with Elmwood. Traffic at the intersection, including that entering and leaving the hospital grounds, is controlled by electric signals.
The accident occurred in or near the center of the Bull-Elmwood intersection. During the afternoon rush hour Mrs. Smith, the plaintiff, was proceeding east on Elmwood and, as she wished to turn left onto Bull, had entered the off-set lane farthest to her left and closest to the Elmwood concrete strip as she approached the intersection. However, obeying the traffic signal, she brought her car to a stop at the stop line on Elmwood. While she was waiting for the light to change, defendant’s vehicle, a large tractor-trailer tank truck operated by a company driver, stopped beside her in the lane immediately to her right, i. e., the second lane from the concrete strip. The truck driver, McPheeters, like Mrs. Smith, intended to make a left turn into Bull Street, and, when the signal light changed, both vehicles began their left turns into the intersection, proceeding approximately abreast of one another. As they were doing so, according to the testimony of Humble’s driver, a third vehicle came out of the hospital drive and made such a wide turn to the left to head south on Bull Street that it entered the path of the approaching tanker. McPheeters further testified that, in an effort to avoid a collision with the third vehicle, he turned his truck more sharply to the left and in so doing collided with plaintiff’s car.
Since a basis for Mrs. Smith’s claim was the alleged negligence of defendant’s driver in not approaching the intersection in the proper lane for a left turn, and as Humble interposed the defense of sudden emergency, the plaintiff requested the court to charge the jury concerning certain South Carolina statutes prescribing the proper position of vehicles and method of making left turns at intersections. These statutes are set forth in the margin. The court declined to include all the requested statutory provisions. However, it did include an abbreviated version of § 46-405, instructing the jury that, “Section 46-405, of the code of this state, provides in connection with turning movements of automobiles: ‘No person shall turn a vehicle at an intersection unless and until such movement can be made with reasonable safety.’ Any violation of that would be negligence per se.” Following the adverse jury verdict plaintiff unsuccessfully moved for a new trial on several grounds, but the only point here urged as ground for reversal is the court’s refusal to include in its charge all the code sections as requested.
Mrs. Smith’s contention that these sections are applicable to turns at this intersection and hence relevant to the issue of negligence appears to be based on two assumptions: (1) that her lane, and not McPheeters’, is the lane designated for left turns by § 46-402(2), and (2) that a turn in some manner different from that prescribed in § 46-402(2) is neither permitted nor required by any marker or other device pursuant to § 46-403.
The trial transcript discloses that there was an extended discussion between court and counsel concerning the relevancy of the statutes in these circumstances. The court apparently recognized that the junction of Bull and Elmwood constitutes an intersection within the meaning of the South Carolina statutory definition. Nevertheless, the court concluded that, of the statutes in question, only a portion of § 46-405 was pertinent since both Elmwood and Bull were public streets and the fact that Elmwood’s four lanes for eastbound traffic came to a “dead-end” at Bull created a situation where left turns must be permitted from both Mrs. Smith’s lane and the lane next to it on the right. There was testimony to show that it was the common practice among motorists to make a left turn from either of the two lanes. Humble urges that an interpretation of § 46-402(2) which would require that left turns be made exclusively from Mrs. Smith’s lane would, in effect, render useless the middle two of Elmwood’s four eastbound traffic lanes.
The lane as described above being used by the plaintiff was obviously provided by local authorities as an additional lane for the use of motorists desiring to turn left from Elmwood at the intersection. But we find nothing in the cited statutory provisions or the evidence requiring that left turns be made from that lane only. There is no evidence of anything in the nature of markers, buttons or signs which would prohibit a left turn from the defendant’s lane. If the court had charged the jury with respect to § 46-402(2) it would have been under a duty to tell the jury that the defendant’s truck, in approaching the intersection for a left turn, was actually in that portion of the right half of Elmwood nearest the center line thereof.
We conclude that the portion of § 46-405 which the, court included in its charge was not misleading and that the court did not err in refusing to charge with respect to the other statutory provisions as requested.
Affirmed.
. At either side of the Elmwood intersection Bull Street also has an off-set lane for traffic making left turns into Elmwood or into the hospital driveway. These off-sets are not involved here.
. According to the truck driver’s testimony he had deliberately chosen the second lane since, in his view, the radius of a left turn made from the leftmost lane was such that the rear end of a vehicle the length of his truck would cut across the end of the raised concrete strip; also, that by using the second lane he permitted faster traffic in Mrs. Smith’s lane to pass.
. S.C.Oode Ann. (1962)
§ 46-402. Required position and method of turning at intersections.— The driver of a vehicle intending to turn at an intersection shall do so as follows : * * *
(2) Left turns on tioo-ioay roadioays. —At any intersection where traffic is permitted to move in both directions on each roadway entering the intersection, an approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and by passing to the right of such center line where it enters the intersection, and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered, and whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection; * * *.
§ 46-403. Local markers requiring turns in some other manner.—Subject to the limitations [not pertinent here] prescribed in § 46-302, local authorities in their respective jurisdictions may cause markers, buttons or signs to be placed within or adjacent to intersections and thereby require and direct that a different course from that specified in § 46-402 be traveled by vehicles turning at an intersection, and when markers, buttons or signs are so placed, no driver of a velr'cle shall turn a vehicle at an intersection other than as directed and required by such markers, buttons or signs. (1952 Code § 46-403; 1949 (46) 466.)
§ 46—405. General rule for turning movements.—No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon a roadway as required in §§ 46—402 and 46-403 or turn a vehicle to enter a private road or roadway or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. (1952 Code § 46-405; 1949 (46) 466.)
. By statute South Carolina defines an intersection, insofar as is here applicable, as follows:
“Intersection. — An ‘intersection’ is the area embraced within the prolongation or connection of the lateral curb lines or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles or the area within which vehicles traveling upon different highways joining at any other angle may come in contact.” S.C.Code Ann. § 46-257 (1962).
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
NORVILLE v. HUB FURNITURE CO.
Court of Appeals of District of Columbia.
Submitted March 7, 1929.
Decided April 1, 1929.
No. 4733.
J. Wm. Tomlinson, of Washington, D. C., for appellant.
Edmund L. Jones, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
MARTIN, Chief Justice.
This is an action for damages for personal injuries alleged to have been suffered by appellant because of the negligence of appellee. At the close of appellant’s testimony the lower court directed a verdict for appellee, and judgment was entered accordingly.
The declaration charged that the appellee company was a mercantile establishment maintaining a store in the city of Washington ; that it was the duty of appellee to use proper care to keep the entrances to its store and also the public'sidewalk or pavement in front of the store in a safe condition for the ingress and egress of persons having business within the store; but that at the time of the occurrence the appellee negligently permitted the sidewalk in front of the store to have snow, water, ice, and slush upon it, so that it was in a slippery and dangerous condition; and that by reason thereof appellant while leaving appellee’s store slipped upon the snow, water, ice and slush, and fell to the pavement, suffering serious bodily injuries for which he prayed judgment in damages.
The plea alleged that at the time of the accident appellee’s sidewalks were in good condition and free from snow and ice, and that if appellant foil while walking thereon it was the result of his own negligence and not of any negligence on appellee’s part.
The testimony tended to show that on the day before the aceident there was an unusually heavy fall of snow, and that at the time of the accident it was cold and windy; that the public sidewalk in front of appellee’s store had snow and ice upon it, and the wind was blowing snow from the awnings and canopy upon the front of appellee’s building to the sidewalk in front of the entrance to the store; that the awning extended over the sidewalk from a foot and a half to two feet, and the canopy hung over the sidewalk from three and a half to four feet; that appellant upon the occasion in question went into the store on business, and when he came out he took two short steps on the sidewalk, and as he took a third step he slipped upon the ice and snow and fell and slid to the curb, receiving severe injuries. It also appears from appellant’s testimony that when he came out of the door he saw the snow blown from the awnings and canopy on to the sidewalk, and that he stepped upon it thereby causing his fall.
Wo think that these facts do not tend to prove negligence on the part of appellee. The accident happened upon the public pavement in front of appellee’s store. It does not appear that there was any defect in the construction of the store building, or any part of it, contributing to appellant’s fall. It is stated that snow was blown from the awnings and canopy upon the pavement, but it does not appear that the awnings and canopy were defective in any respeet or in any wise unusual in size, location, or other feature. Moreover it appears that appellant saw the snow blown therefrom upon the pavement and stepped upon it, resulting in his fall.
At the trial below the appellant by his counsel expressly stated that he did not base his claim for a recovery upon the so-called “Snow Law” of the District of Columbia; his claim therefore is to be judged according to the rules and principles of the common law. These are well set out in 13 R. C. L. 415, § 341, as follows:
“In the absence of a statutory provision to the contrary, the owner or occupant of property owes no duty to pedestrians to keep the side walk in front of it free from ice and snow coming thereon from, natural causes, * * *• nor does a storekeeper owe any greater duty in this regard to customers leaving his store than he owes to ordinary pedestrians.
See McGrath v. Misch, 29 R. I. 49, 69 A. 8, 132 Am. St. Rep. 798; Hanley v. Fireproof Bldg. Co., 107 Neb. 544, 186 N. W. 534, 24 A. L. R. 382.
The instant case comes within these principles, for appellant’s fall occurred upon the public pavement, and was occasioned by conditions arising from a very severe snowstorm, and not from any default in appellee’s conduct or defect in its property.
The judgment of the lower court is affirmed, with costs.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Appellee, v. John DOE, a/k/a, James Singleton, Defendant, Appellant.
No. 88-1864.
United States Court of Appeals, First Circuit.
Heard Aug. 3, 1990.
Decided Dec. 13, 1990.
Barbara A.H. Smith, by Appointment of the Court, with whom Quinlan, Dee & Smith, Boston, Mass., was on brief, for appellant.
Jose A. Quiles, Asst. U.S. Atty., with whom Carlos A. Perez, Asst. U.S. Atty., and Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., were on brief, for appellee.
Before SELYA and CYR, Circuit, and RE Judge.
The Honorable Edward D. Re, Chief Judge of the United States Court of International Trade, sitting by designation.
RE, Chief Judge.
Appellant, John Doe, a/k/a James Singleton (Singleton), appeals from a judgment of conviction following a jury trial in the United States District Court for the District of Puerto Rico. Singleton was convicted of aiding and abetting in the possession with the intent to distribute marijuana in violation of 18 U.S.C. § 2 and 46 U.S.C. App. §§ 1903(a), (c), and (f).
Singleton contends that the district court erred in denying his Rule 29 motion for acquittal because it applied an improper standard to test the sufficiency of the evidence, and, therefore, found sufficient evidence for the case to go to the jury. Singleton further contends that the district court’s imposition of a 360-month sentence pursuant to the Sentencing Guidelines was fundamentally unfair.
We hold that the district court applied a correct standard of sufficiency, and that the evidence presented was sufficient to support the jury’s verdict of guilty beyond a reasonable doubt. Furthermore, since the court complied with the Sentencing Guidelines, the 360-month sentence is not appealable. Hence, the judgment of the district court is affirmed.
BACKGROUND
In April 1988, an indictment was returned by a federal grand jury in Puerto Rico against Singleton and five others who were arrested while on a ship. They were charged with aiding and abetting each other in the knowing, willful, and intentional possession with the intent to distribute approximately 3,500 pounds of marijuana in violation of 18 U.S.C. § 2, and 46 U.S.C. App. §§ 1903(a), (c), and (f). Singleton and the five other defendants were tried together before a jury. The jury found three guilty and three not guilty. Only Singleton’s appeal is before us.
The testimony at trial revealed that on January 5, 1988, the United States Coast Guard Cutter Dauntless approached a vessel on the high seas off the coast of Cuba. Since the vessel was coming from the direction of Haiti, Ensign Pulver and other officers aboard the Dauntless discussed whether a boarding of the vessel was warranted because of possible immigration law violations. After having sighted the vessel, the Dauntless attempted to establish radio communication on two channels and in three languages. The Dauntless received no reply, and no electronic communication was established. On drawing closer to the vessel, Ensign Pulver saw on the vessel the name Marilyn E and some letters, but he could not see a home port designation or flag.
Ensign Pulver and the boarding party hoarded a smaller Coast Guard vessel, and drew closer to the Marilyn E. At a distance of about thirty yards, voice contact was established, and someone on the vessel identified it as being from Jamaica.
Ensign Pulver requested and was given permission to board the Marilyn E. He was told by someone on the Marilyn E that there were seven people on board. This proved to be correct as all seven were arrested, although only six were indicted.
Upon boarding the vessel, Ensign Pulver asked for the certificate of documentation. In response to his request, he was given a bill of sale, which was an improper documentation. The “sweep team” searched the vessel, and Ensign Pulver asked what was in the hold. Willey Gordon, the master of the vessel, replied that there was ice in the hold. Ensign Pulver then requested and was given permission to open the hold. During this time, Singleton’s only statement was that he was from the United States.
Upon opening the hold, Ensign Pulver discovered bales up to the top of the hold, and stated that he could tell by the smell that the bales contained marijuana. That the bales contained marijuana was later confirmed by a field test. At trial, other members of the Coast Guard testified that there were 102 bales of marijuana, weighing approximately forty pounds each. Ensign Pulver requested authority from the Commander of the Dauntless to arrest the persons on board the Marilyn E. Since the Coast Guard required the permission of the country of origin to arrest the persons on board the Marilyn E, they were asked if there were flags on board to show a registry. Willey Gordon replied that there were no flags. Singleton stated that he thought that there were flags in the forward section. Two flags were found in the forward section, one yellow and the other a United States flag.
Since the vessel was originally identified by someone on board as being from Jamaica, the Coast Guard requested that Jamaica grant permission for the arrests. While waiting for a reply, the persons on board the vessel slept. After several hours, the Coast Guard received permission from the Jamaican government and the commandant of the Coast Guard to make the arrests. The defendants were thereafter transferred to the Dauntless. The Marilyn E was attached to the Dauntless by a towline, and both vessels proceeded toward Puerto Rico.
The testimony also revealed that the Marilyn E was in disrepair and ill equipped for fishing, or any other kind of long term travel. No fishing gear, refrigeration, ice, or back-up equipment was found on board. The vessel leaked and, indeed, during the trip to Puerto Rico, the Marilyn E sank.
At the close of the government’s case, Singleton’s motion for dismissal under Rule 29 was denied.
Although Singleton presented no evidence on his own behalf, his attorney examined his co-defendant, Willey Gordon. Gordon testified that Singleton asked him for a ride to the Bahamas because Singleton’s girlfriend had destroyed his papers. Gordon told Singleton that he was not going to the Bahamas, but that he was going to “Cape Sol Bank.” Gordon also told Singleton that the owner of the boat would have to give permission for Singleton to make the voyage. The owner, according to Gordon, gave permission for Singleton to be on the boat.
At the close of all evidence, Singleton renewed his Rule 29 motion, and the motion was again denied. The jury returned a verdict of guilty for Singleton and two others, and not guilty for the other three defendants.
On appeal, Singleton contends that the district court erred in denying his Rule 29 motion to dismiss for lack of sufficient evidence, and in imposing a 360-month sentence. Since we hold that the district court correctly denied Singleton’s motion to dismiss, and that the imposition of the 360-month sentence is not appealable, the decision of the district court is affirmed.
DISCUSSION
1. The Rule 29 Motion for Judgment of Acquittal
Rule 29(a) of the Federal Rules of Criminal Procedure provides that, on motion of a defendant, the court “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.”
Since Singleton made his Rule 29 motion to dismiss at the close of the government’s case-in-chief, and since he renewed' the motion at the close of all evidence, we will review all the evidence presented at trial to determine whether it was sufficient to support the jury’s verdict of guilty beyond a reasonable doubt. See United States v. Fearn, 589 F.2d 1316, 1321 (7th Cir.1978).
Singleton is charged with aiding and abetting in the possession with the intent to distribute marijuana. In Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949), the Supreme Court stated that “[i]n order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.’ ” Id. at 619, 69 S.Ct. at 770 (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938).
Although the evidence against Singleton is largely circumstantial, the standard to be applied is nonetheless “whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt.” Dirring v. United States, 328 F.2d 512, 515 (1st Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964). Indeed, we have specifically stated that “in the context of review of a motion for acquittal, ‘no legal distinction exists between circumstantial and direct evidence.’ ” United States v. Clotida, 892 F.2d 1098, 1104 (1st Cir.1989) (quoting United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986)). Furthermore, it is unquestioned that direct evidence need not be presented. Judicial authority teaches that “the government can use circumstantial evidence as long as the evidence, viewed as a whole, is sufficient to warrant a reasonable jury to conclude that the defendant is guilty beyond a reasonable doubt.” United States v. Machor, 879 F.2d 945, 948 (1st Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1167, 107 L.Ed.2d 1070 (1990). See also United States v. Glover, 814 F.2d 15, 16 (1st Cir.1987). Finally, “[o]nce a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” 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. Williams, 858 F.2d 1218, 1221 (7th Cir.1988), cert. denied, 488 U.S. 1010, 109 S.Ct. 796, 102 L.Ed.2d 787 (1989).
In response to Singleton’s allegation of error, we must state that we find no error in the colloquy between the district court and defense counsel on the Rule 29 motion. The district court, in denying the motion, merely inquired of defense counsel why the district court should find the government’s evidence to be insufficient. This query does not, as Singleton asserts, “dilute the prosecution’s burden of proof.” Rather, the district court was merely affording defense counsel an opportunity to show why the government’s evidence was insufficient for submission to the jury. After having heard the arguments of defense counsel, the district court denied the motion. See Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978).
On appeal, Singleton again contends that the government’s evidence is insufficient for a finding of guilt beyond a reasonable doubt. He asserts that the evidence fails to prove that he was anything more than a “hitchhiker” on the Marilyn E. Singleton asserts that, since there was no testimony that there was a noticeable marijuana odor on board the ship, and that, since the government failed to refute the testimony of a co-defendant as to Singleton’s legitimate purpose for being on board the ship, the jury’s verdict should be set aside. The answer is found in many cases that indicate clearly that “[i]t is not necessary for the government to disprove every reasonable hypothesis of innocence, provided that the record as a whole supports a conclusion of guilt beyond a reasonable doubt.” United States v. Cuevas-Esquivel, 905 F.2d 510, 514 (1st Cir.), cert. denied, — U.S. —, 111 S.Ct. 208, 112 L.Ed.2d 169 (1990). See also United States v. Molinares Charris, 822 F.2d 1213, 1219 (1st Cir.1987); United States v. Rivera Rodriquez, 808 F.2d 886, 890 (1st Cir.1986). In the present case, sufficient evidence exists to support the jury's verdict.
In United States v. Lopez, 709 F.2d 742 (1st Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 187, 78 L.Ed.2d 166 (1983), the appellant Lopez, who was arrested while on a vessel, contended that his conviction for possessing and importing marijuana should have been reversed because there was no noticeable marijuana odor on the vessel before the hold was opened. The appellant also contended that the government “failed to prove that [he] knew at the time [he] signed on with the [vessel] that the vessel contained marijuana.” Id. at 746. In Lopez, we held that certain combinations of factors supported a finding of guilt beyond a reasonable doubt. These factors included: (1) the length of the voyage; (2) the amount of marijuana in relation to the size of the ship; and (3) because of cramped quarters, the necessarily close relationship of the crew. In conjunction with inferences that the marijuana could only be unloaded in a clandestine manner, and that, under the circumstances, the shippers of an illegal cargo would not allow innocent bystanders on the vessel, we held that the conviction was supported by sufficient evidence. See id. at 748.
In the present case, as in Lopez, no marijuana odor was present until the hold was opened. We note, however, that “[r]egardless of whether the marijuana was hidden in scent as well as sight at the time the Coast Guard encountered the vessel, there was evidence from which it could be found that appellant[ ] must have played an active role_” Molinares Charris, 822 F.2d at 1219. See also United States v. Robinson, 843 F.2d 1, 9 (1st Cir.), cert. denied, 488 U.S. 834, 109 S.Ct. 93, 102 L.Ed.2d 69 (1988).
Singleton cites United States v. Elkins, 774 F.2d 530 (1st Cir.1985) in support of his contention that his “mere presence” on board the vessel is insufficient evidence of his guilt. In Elkins, we found that the district court was incorrect in failing to strike testimony of a Coast Guard officer as to the defendants’ lack of surprise upon being arrested because such testimony “invited the jury to infer guilty knowledge from the defendants’ failure to respond.” Id. at 538. In Elkins, since errors at trial were not harmless, and the evidence was insufficient to overcome the prejudicial nature of the errors, we remanded for a new trial. Id. at 539-540.
Singleton also points to our decision in United States v. Clotida as support for his contention that his mere presence is insufficient evidence. Clotida involved the appeals of two defendants, Clotida and Chat-ten, who were convicted of aiding and abetting each other in the possession with the intent to distribute cocaine, and importation of cocaine. The defendants were arrested during a stopover in San Juan, Puerto Rico, while en route from Ecuador to Amsterdam. A Customs Inspector discovered cocaine in three suitcases, and the tags on the suitcases matched those in the possession of Clotida. Id. at 1101. Defendant Clotida had possession of the passports, the baggage checks, and the airline tickets. Indeed, the only evidence presented by the government against Chatten was that she travelled with Clotida, and that “clothing, impregnated with cocaine[, was] found in suitcases with baggage tag numbers that matched those in the possession of Cloti-da.” Id. at 1105.
In Clotida, we reversed as to defendant Chatten since we found that “the only evidence that may be said to connect or tie Chatten to the crime was that she was present at the airport in San Juan, and had accompanied Clotida” on the trip. Id. The evidence against Chatten fell short of that required to convict a defendant as an accomplice. Hence, the evidence of mere presence presented by the government against Chatten was insufficient. As indicated in the opinion, to have sustained her conviction would have done violence to the presumption of innocence as well as the beyond a reasonable doubt standard of proof required for conviction. See id. at 1105-1106. See also State v. Tally, 102 Ala. 25, 65-76, 15 So. 722, 737-741 (1894) (thorough discussion of proof required to convict accomplice).
In the present case, however, considerably more evidence exists to show Singleton’s connection with the criminal activity. Testimony at trial revealed that Singleton knew where the flags were, that he helped steer the boat, and that he received permission to board the boat from the owner. This is not a case of “mere presence” since an inference of involvement in the illegal activity could be drawn by a jury from the testimony that Singleton helped steer, knew where the flags were, and received permission from the vessel’s owner, who presumably knew the purpose of the voyage, to board the vessel. See Lopez, 709 F.2d at 748.
Singleton also urges that our decision in United States v. Robinson “is instructive” because in Robinson the defendants were crewmembers on the vessel and, in the present case, Singleton was not a crew-member. See 843 F.2d at 9. The jury in the present case, however, might indeed have reasonably inferred that Singleton, in effect, was a crewmember since he helped steer the vessel and knew where the flags were. Additionally, we recognize that sufficiency depends on the totality of the evidence, not one particular fact or factor. See id. See also Molinares Charris, 822 F.2d at 1219.
Particularly significant is our decision in United States v. Luciano Pacheco, 794 F.2d 7 (1st Cir.1986), which was also a case in which arrests were made on a ship. In Luciano Pacheco, the defendants, who were appealing from a conviction for aiding and abetting in the possession with the intent to distribute marijuana, contended that they were mere passengers on the vessel. At trial, defendants testified that “when sight seeing together in Colombia, they were robbed of their worldly possessions ... [and] ... a stranger, overhearing their conversation in English, offered them a ride to Martinique_” Id. at 10. We found that “[w]hile the ... ‘innocent passenger’ defense is certainly within the realm of human possibilities, we have previously noted that juries are perfectly entitled not to believe what may be inherently incredible....” Id. (citing Lopez, 709 F.2d at 747).
In the present case, as in Luciano Pacheco, the evidence presented, and the inferences that might reasonably be drawn therefrom, support a jury verdict of guilty. The testimony at trial shows that the boat was in disrepair, there was no fishing equipment on board, there was no ice or refrigeration for storing fish, and there were no identifying features on the boat other than its name. These factors justify the inference that there was no legitimate purpose for the voyage. See Molinares Charris, 822 F.2d at 1219.
As we stated in Elkins, 774 F.2d at 539, although an inference of some type of illegal activity is an insufficient basis to find a defendant guilty, in the present case there is additional evidence that Singleton was more than a mere passenger. The following may be enumerated: (1) no one on the ship answered repeated attempts by the Coast Guard to establish radio communication; (2) the hold where the marijuana was stored was unlocked and readily accessible to anyone on board; (3) the crew spent their time in extremely cramped quarters; (4) 3,500 pounds of marijuana were on board a 50 foot boat; (5) Singleton helped steer the boat; (6) Singleton knew where the flags were; and (7) Singleton had permission to be on board.
Singleton’s reliance on United States v. Francomano, 554 F.2d 483 (1st Cir.1977) is also misplaced. In Francomano, we held that the defendants, “young men, short of funds, seeking travel for educational experience and adventure,” were merely present on the vessel, and therefore not guilty of the crime charged. Id. at 486. Francomano involved approximately 50 pounds of marijuana, found floating behind the vessel. Furthermore, there were no other factors, as exist in the present case, that tied the defendants to the crime. See id. at 487. See also United States v. Mehtala, 578 F.2d 6, 8 (1st Cir.1978) (same ship and incident, different defendant). Moreover, in Mehtala and Francomano, since the vessel was carrying 2250 pounds of coffee and 2000 pounds of sugar, there was a legitimate purpose for the voyage. See Mehtala, 578 F.2d at 8. See also United States v. Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir.1985).
It may be well to note that it is the responsibility of the jury “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences....” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Furthermore, it is within the province of the jury, not that of the reviewing court, to assess the credibility of witnesses. See Machor, 879 F.2d at 948. Finally, the jury’s verdict should not be overturned unless “the prosecution’s failure [to prove guilt] is clear.” Burks, 437 U.S. at 17, 98 S.Ct. at 2150.
In the present case, the jury was fully instructed as to the elements of the crime. The jury was also instructed that “mere presence at the scene of a crime and knowledge that a crime is being committed is not sufficient to establish that a defendant aided and abetted a crime.... ” Moreover, the jury did not merely treat all defendants alike, and bring in a single verdict of guilty as to all defendants, but rather, exercised judgment and found three defendants guilty and three not guilty. In light of the careful instructions given to the jury, and the sufficiency of the evidence presented at trial, we ought not, in this case, set aside the jury’s verdict.
2. Sentencing
Singleton asserts that the imposition of a 360-month sentence is fundamentally unfair because of the “paucity of the evidence.” He adds that the government presented no evidence to show that Singleton “knew, or should have known, the amount of marijuana allegedly involved.” Singleton also asserts that the imposition of a 360-month sentence on a 54-year old man amounts to a “life sentence,” and the district court failed to consider whether a “life sentence” is appropriate punishment for this crime. We find no merit to Singleton’s assertions.
We note at the outset that “[t]he use of guideline sentencing ... does not deprive a defendant of his constitutional right to due process.” United States v. LaGuardia, 902 F.2d 1010, 1014 (1st Cir.1990). While we recognize that the imposition of a 360-month sentence is severe, the district court correctly followed the Sentencing Guidelines in computing the sentence. Furthermore, a defendant may file an appeal as to the imposition of a sentence pursuant to the Guidelines only if the sentence:
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater ... term of imprisonment ... than the maximum established in the guideline range ...; or
(4) was imposed for an offense for which there is no sentencing guideline....
18 U.S.C. § 3742(a). See United States v. Tucker, 892 F.2d 8, 9-10 (1st Cir.1989). See also United States v. Zavala-Serra, 853 F.2d 1512, 1518 (9th Cir.1988) (Eighth Amendment generally offers no relief from a sentence imposed in conformity with the Guidelines).
Singleton’s assertion that his base offense level should be determined by reference to the amount of marijuana entered into evidence at trial, rather than the amount found on the vessel, is without merit. Sufficient testimony at trial established that the total amount of marijuana on the vessel was in excess of 3,500 pounds (1,600 kilograms), and that amount required a base offense level of 32. See U.S.S.G. § 2.D1.1(c)(6). We have stated that “an estimation of the total weight of the amount, based on the testimony of the ... officers, ... was appropriate.” United States v. Hilton, 894 F.2d 485, 488 (1st Cir.1990). Furthermore, Singleton was convicted of aiding and abetting in the possession with the intent to distribute the total amount, not the amount entered into evidence at trial. Therefore, the larger amount used in the calculation of the sentence was proper.
Singleton also asserts that the imposition of a 360-month sentence on a 54 year old man was improper because it amounts to a sentence of “life” in prison. We note that the defendant’s age “is not ordinarily relevant in determining whether a sentence should be outside the Guidelines.” U.S. S.G. § 5H1.1. The Guidelines limit consideration of age in determining a sentence to “when the offender is elderly and infirm-” Id. (emphasis in original). See also United States v. Daiagi, 892 F.2d 31, 33-34 (4th Cir.1989) (age has been eliminated as a mitigating factor). Therefore, since .Singleton is neither elderly nor infirm, the district court correctly followed the Sentencing Guidelines.
CONCLUSION
Since we hold that Singleton’s conviction was supported by sufficient evidence, and that his sentence in conformity with the Sentencing Guidelines is not appealable, the judgment of the district court is affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_counsel2
|
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.
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 Edward HAMPTON, Appellant, v. UNITED STATES of America, Appellee.
No. 10608.
Circuit Court of Appeals, Ninth Circuit.
June 16, 1944.
James D. Randles, of Los Angeles, Cal., for appellant.
Charles H. Carr, U. S. Atty., and James M. Carter and Ernest A. Tolin, Asst. U. S. Attys., all of Los Angeles, Cal.
Before WILBUR, GARRECHT, and HEALY, Circuit Judges.
PER CURIAM.
Upon consideration of the stipulation of counsel for respective parties, and good cause therefor appearing, it is ordered that the judgment of the District Court in this cause be affirmed, that a judgment be filed and entered accordingly, and that the mandate of this Court in this cause issued forthwith.
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_appnonp
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
COMMERCIAL CAPITAL CORPORATION, a corporation, G.N. Van Horn and Bert Chesnut, Petitioners, v. SECURITIES AND EXCHANGE COMMISSION, Respondent.
No. 15365.
United States Court of Appeals Seventh Circuit.
May 2, 1966.
John J. Enright, Chicago, Ill., for petitioners, Arvey, Hodes & Mantynband, Chicago, Ill., of counsel.
Philip A. Loomis, Jr., Gen. Counsel, David Ferber, Sol., Securities and Exchange Commission, Martin D. Newman, Atty., Securities and Exchange Commission, Washington, D. C., for respondent.
Before DUFFY, SCHNACKENBERG and ENOCH, Circuit Judges.
DUFFY, Circuit Judge.
Petitioners Van Horn and Chesnut appearing pursuant to subpoena, testified in a nonpublic investigation conducted by the Securities and Exchange Commission with respect to Commercial Capital Corporation and others.
Thereafter, on May 28, 1965, petitioners’ attorney requested permission, pursuant to Rule 6 of the SEC’s Rules Relating to Investigations (17 CFR § 203.6) to purchase copies of their transcripts from the official reporter.
On July 21, 1965, a letter was issued from the Securities and Exchange Commission bearing the signature of the Commission’s secretary which stated in material part:
“Please be advised that the Commission has denied your request for authorization to purchase a copy of the above-captioned testimony. The Commission determined that the granting of the request at this time would be inconsistent with the proper execution of its statutory functions.”
This is the “order” which petitioners seek to review.
Prior to oral argument, the Securities and Exchange Commission moved to dismiss the instant petition for review for lack of jurisdiction, claiming that the Commission’s order was not reviewable. We ordered that the motion to dismiss be taken with the case. On oral argument, this point was argued as well as petitioners’ contention that the manner in which the Commission refused to sell them a transcript of the investigative hearing, amounted to a denial of due process.
The Securities and Exchange Commission has broad authority to adopt rules and regulations necessary for the execution of it functions. The Commission has adopted a body of rules known as “Rules Relating to Investigations, 17 CFR 203.1, et seq.” Rule 6 of these rules provides:
“Transcripts, if any, of formal investigative proceedings, shall be recorded solely by the official reporter, or by any other person or means designated by the officer conducting the investigation. A person who has submitted documentary evidence or testimony in a formal investigative proceeding shall be entitled to procure a copy of his documentary evidence or a transcript of his testimony on payment of the appropriate fees; provided, however, that in a non public formal investigative proceeding a person seeking a transcript of his testimony shall file a written request stating the reason he desires to procure such transcript, and the Commission may for good cause deny such request. In any event, any witness (or his counsel), upon proper identification, shall have the right to inspect the official transcript of the witness’ own testimony.”
The provisions of the Administrative Procedure Act, 5 U.S.C. § 1001 et seq. also covers the activities of the Securities and Exchange Commission. Section 6(b) of that Act (5 U.S.C. § 1005(b)), provides in pertinent part:
“Every person compelled to submit data or evidence shall be entitled to retain or, on payment of lawfully prescribed costs, procure a copy or transcript thereof, except that in a nonpublic investigatory proceeding the witness may for good cause be limited to inspection of the official transcript of his testimony.”
The legislative history of the Administrative Procedure Act shows Congress was aware that investigations by the Commission, like those of a grand jury, might be thwarted in certain cases if not kept secret, and that if witnesses were given a copy of their transcript, suspected violators would be in a better position to tailor their own testimony to that of the previous testimony, and to threaten winesses about to testify with economic or other reprisals. Therefore Congress added to an earlier draft of Section 6(b) of the Administrative Procedure Act, language giving the agencies the authority to deny for good cause a witness’ request for a transcript of his testimony in a nonpublic investigation.
It is extremely doubtful that Congress intended a direct court review of orders entered by the Securities and Exchange Commission in the course of a nonpublic investigation by that body.
We prefer, however, to rest our decision on the merits. We hold petitioners were not deprived of due process by the Securities and Exchange Commission’s determination that a transcript of the investigative hearing should not be sold to petitioners.
In the first place, Section 6(b) of the Administrative Procedure Act does not require the Commission to spell out the “good cause” which was the basis for the refusal to sell copies of the transcript. We hold that the sale or the withholding of copies of the transcript were within the sound discretion of the Securities and Exchange Commission, and no abuse of that discretion has been shown.
Undoubtedly, it would be a convenience for the petitioners’ attorneys to have transcripts of the testimony in their possession. However, the transcripts are available for inspection not only by petitioners, but by their counsel.
Petitioners Van Horn and Chesnut were- named as defendants in an injunction suit brought by the Commission. The District Court found they were officers, directors and controlling stockholders of the petitioner, Commercial Capital Corporation, which had acted as an underwriter in the offer and sale of securities. The Commission’s attorney there stated that it was her “opinion that there had been flagrant criminal violations of the securities laws” and “that the investigation was being continued to determine if the Commission should refer the matter to the Justice Department for possible criminal prosecution.”
With this background, we hold that petitioners’ request that we order the Securities and Exchange Commission to authorize the purchase of a transcript of petitioners' hearing be denied, and that the petition itself will be dismissed.
Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
songer_appel1_1_3
|
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)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
CITY CHEVROLET COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 7023.
United States Court of Appeals Fourth Circuit.
Argued Jan. 6, 1956.
Decided Jan. 11, 1956.
Frederic D. Dassori, Washington, D. C. (Dee R. Bramwell, Washington, D. C., on brief), for petitioner.
C. Guy Tadlock, Atty., Dept, of Justice, Washington, D. C. (H. Brian Holland, Asst. Atty. Gen., Robert N. Anderson and A. F. Prescott, Attys., Dept, of Justice, Washington, D. C., on brief), for respondent.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
This is a petition to review a decision of the Tax Court relating to deductions for the year 1946 on account of personal services rendered taxpayer corporation by officers who with their "wives were its sole stockholders. The facts are fully stated in the opinion of the Tax Court and need not be repeated here. Taxpayer contends that the bonus of $30,881.69 paid to each of the officers for the year 1946 in addition to salaries of $12,000 each was reasonable because provided for by a contract under which the officers were to have 50% of the net profits of the corporation in excess of 15% and that this was in effect a continuation of a contract made sometime prior thereto when the stock of the corporation was owned by others. The question is one of fact and we are not prepared to hold that the holding of the Tax Court with regard thereto was clearly wrong. A bonus contract which was reasonable as holding out an incentive to those managing the corporation when its stock was owned by others could well be held unreasonable when the managers themselves became owners of the stock and the question was, not what incentive was needed to call forth their best efforts, but what part of the earnings of the corporation could fairly be paid to them for their services as officers. See University Chevrolet Co. v. Commissioner, 16 T.C. 1452, affirmed 5 Cir., 199 F.2d 629.
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_state
|
19
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
SANDEFER OIL & GAS, INC., et al., Plaintiffs-Appellees, v. Deanne Lounsberry DUHON and Freddie Paul Lounsberry, Defendants-Appellants.
No. 91-4318.
United States Court of Appeals, Fifth Circuit.
June 4, 1992.
Rehearing Denied July 6, 1992.
Jack C. Caldwell, Milling, Benson, Woodward, Hillyer, Pierson & Miller, Lafayette, La., and Rudolph Estess, Jr., Baton Rouge, La., for defendants-appellants.
Michael R. Mangham and Herman E. Garner, Jr., Mangham, Hardy, Rolfs & Abadie, Lafayette, La., for Sandefer Oil & Gas, Tex/Con Oil & Gas and SHV Oil & Gas.
Before POLITZ, Chief Judge, BROWN and SMITH, Circuit Judges.
POLITZ, Chief Judge:
Deanne Lounsberry Duhon and Freddie Paul Lounsberry appeal an adverse summary judgment in favor of Sandefer Oil & Gas, Inc., Tex/Con Oil & Gas Co., and SHV Oil & Gas Company. Concluding that the district court erred in its interpretation of the mineral lease at issue, we reverse and remand.
Background
The focus of this litigation is an oil, gas and mineral lease covering property in Vermilion Parish, Louisiana, executed on January 31, 1985. The lease contains a standard habendum clause with a primary term of three years. The lease also contains a typed-in provision known as a horizontal “Pugh” clause, or a bottomhole severance clause, which is the subject of this controversy.
That clause, contained in paragraph 17 of the lease, provides in relevant part that:
After expiration of the primary term, this lease will terminate automatically as to all horizons situated 100 feet below the deepest depth drilled (a) from which a well located on the land or acreage pooled therewith is producing in paying quantities, or (b) in which there is completed on the land or acreage pooled therewith a shut-in gas well which cannot be produced because of lack of market, marketing facilities, or because of governmental restrictions, whichever is the greater depth.
Before expiration of the primary term, the lessees drilled the Marceaux No. 1 well on land pooled with a portion of the lease tract. The Marceaux No. 1 well was drilled to a total depth of 17,609 feet, but its production is from a perforation between 17,090 and 17,200 feet. This well is producing from the Middle Miogypsionoides Sand (“Middle Miogyp”). The Middle Miogyp is at a depth between 17,100 and 17,250 feet in the area where the Marceaux No. 1 well is drilled. Below the Middle Miogyp, separated by approximately 50 feet of shale, is the Lower Miogyp which lies at a depth between 17,300 and 17,420 feet. Accordingly, although the Marceaux No. 1 well was drilled into the Lower Miogyp, its production is entirely from the Middle Miogyp.
On January 31,1988 the primary term of the lease expired. Based upon their interpretation of paragraph 17 the lessees tendered to the lessors a release of all horizons located below 17,700 feet. The lessors refused to accept the release, claiming that they were entitled to a release of all horizons 100 feet below the Middle Miogyp, specifically, all horizons below 17,350 feet. Lessees brought the instant declaratory judgment action for a determination of the application of the Pugh clause.
While this action was pending — approximately seven months after the expiration of the primary term of the lease — the lessees completed a producing well in the Lower Miogyp. The pooling unit included some of lessors’ property. Although the Louisiana Commissioner of Conservation subsequently revised this unit and removed the lessors’ tract, lessors counterclaimed, asking the court to locate the horizontal lease boundary and to determine the sums they were entitled to from the Lower Mio-gyp well during the period that their property was included in the pooling unit.
On cross motions for summary judgment the district court granted the lessees’ motion holding that “the Lease automatically terminated at the end of its primary term only as to those horizons below the ... depth of 17,709 feet.” The court also dismissed with prejudice the lessors’ counterclaim for an accounting. Lessors timely appealed.
Analysis
We focus herein on the interpretation of the Pugh clause. Generally, contract interpretation is a question of law reviewed de novo. Massie v. Inexco Oil Co., 798 F.2d 777 (5th Cir.1986); Austin v. Decker Coal Co., 701 F.2d 420 (5th Cir.), cert. denied, 464 U.S. 938, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983). While “[ajmbiguous contracts may require consideration of evidence beyond the four corners of the contract,” neither party to this suit argues that the lease provision is ambiguous, “nor did the . district court rely on extrinsic evidence in granting summary judgment to the [lessees] when presented with cross-motions.” Burns v. Louisiana Land & Exploration Co., 870 F.2d 1016, 1018 (5th Cir.1989). Therefore, although the parties each assign a different interpretation to the lease provision, we treat it as unambiguous and proceed to construe it de novo.
' In light of the specific language of paragraph 17, the Louisiana Civil Code articles and jurisprudence governing the interpretation of oil and gas leases, and the purposes of this type of clause, we must disagree with the legal conclusion of thé district court and hold that the depth to which the horizontal Pugh clause refers is the depth of the sand from which the Marceaux No. 1 well is producing, not the depth to which the drill stem was extended.
There is no dispute that paragraph 17 of the lease was intended and does operate as a horizontal Pugh clause. The main purpose of any Pugh clause is to protect the lessor from the anomaly of having the entire property held under a lease by production from a very small portion. Rogers v. Westhoma Oil Co., 291 F.2d 726 (10th Cir.1961); Roseberry v. Louisiana Land & Exploration Co., 470 So.2d 178 (La.App.1985). The Pugh clause fosters- reasonable development of leased property. Horizontal Pugh clauses, like the one at issue, are relatively recent innovations in oil and gas leases, but they serve the same purposes as the more established vertical Pugh clause. In juxtaposition to its vertical counterpart, the. horizontal Pugh clause makes a horizontal division of property subject to the lease. As with the original vertical-oriented clause, its purpose is to foster reasonable development of the property burdened by the lease. Stated more simply, if one leases property for oil and gas development, one should develop it during the agreed time or let it go.
While Pugh clauses share the same basic purpose, they may differ in the requirements imposed on the lessee in order to continue the lease beyond its primary term. For example, the lessees herein have attempted to bolster their position by including in the record examples of horizontal Pugh clauses which maintain the lease only to the depth from which there is actual production. These clauses, they argue, indicate that if the lease in question was to be maintained only to those depths from which actual production was being realized, the clause should have been written that way. One need not look very far, however, to find examples of clauses which just as clearly establish that the lessee shall retain lease rights to depths to which the lessee has merely drilled or tested, with no reference to production. See Low, The Law of Oil and Gas, § 1126 (West 1990 Supp.). In order to determine the depths maintained under the present lease we must look to its specific language.
As an Erie court, we defer to Louisiana law for the principles applicable to interpreting the oil and gas lease before us. Under Louisiana law, the codical provisions applicable to ordinary leases are applicable to mineral leases. Massie, 798 F.2d at 779; Bouterie v. Kleinpeter, 258 La. 605, 247 So.2d 548 (1971). We must therefore “determine the intent of the parties as expressed in the lease without rendering any part of the instrument meaningless.” Massie, 798 F.2d at 779 (citing Civil Code arts. 2045, 2050). “Some effect is to be given to every word or clause if possible for a court may not impute to the parties the use of language without meaning or effect.” Lambert v. Maryland Cas. Co., 418 So.2d 553, 559 (La.1982). “Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract.” Civil Code art. 2048.
Our analysis begins and ends with the text of the lease provision relating to the depth from which the measurement is to be made. The lease identifies that as “the deepest depth drilled (a) from which a well located on the land or acreage pooled therewith is producing in paying quantities.... ” As used herein, the word “depth” has three modifiers: “deepest,” “drilled,” and “from which a well ... is producing,” We are persuaded that the only depth which meets all three of these criteria is the bottom of the sand from which the Marceaux well is actually producing in the Middle Miogyp.
The district court emphasized the importance of “drilled” but provided no explanation of the effect of the requirement that the depth be one from which a well is producing. The bottom of this well at 17,609 feet is simply not a depth from which a well is producing in paying quantities. Therefore, this lower depth does not satisfy all of the criteria detailed in the lease.
Lessees argue that the lessors’ interpretation of the lease renders meaningless the requirement that the measuring depth be the deepest drilled depth. “Meaningless” is an overstatement. More accurately, in our view, is that the drilled depth is “qualified.” One must not only drill, under this clause, but one must produce. Taking lessees’ argument one step further indicates its Achilles heel. Assume a drilling to a depth of 17,800 feet, with a perforation resulting in a producing well in a 200-foot sand located just below 4500 feet. Is the additional two .and one-half miles of depth to be maintained under the lease, without any further development, as long as the sand at 4500 feet surrenders its oil or gas in paying quantities? We are not so persuaded.
As in all cases of contract interpretation, we must seek to ascertain the intent of the parties. Civil Code art. 2045. Requiring that the lessee actually produce minerals from the depth over which the lease provisions are maintained after expiration of the primary term, is consistent with both the plain and express meaning of the language used and the recognized purpose of the Pugh clause. “The obvious intent of the inserted typewritten clause was to insure that [the lessees] would diligently attempt to explore and develop all of the acreage encompassed within the lease.” Roseberry, 470 So.2d at 183. To hold otherwise would defeat the main purpose of the horizontal Pugh clause by allowing the lessees to hold deeper horizons indefinitely without producing a cup of oil or an MCF of gas. But for the possibility of an action for breach of further exploration and development, see Carter v. Arkansas Louisiana Gas Co., 213 La. 1028, 36 So.2d 26 (1948), the lessors would be unable to prevent the lessee from holding the Lower Miogyp indefinitely for speculative purposes, and might not ever reap the benefits of their property during their lifetimes. We now hold that the bottom of the horizontal lease is 100 feet below the bottom of the Middle Miogyp, specifically, 100 feet below 17,250 feet within the area drained by the Mar-ceaux No. 1 well.
The final issue before us is the lessors’ contention that they are entitled to an accounting of the unit production from the Lower Miogyp Sand. We agree that an accounting is in order; however, there are not sufficient facts in the record to determine the proportionate interests of the parties in the Lower Miogyp Sand production.
Although the lessors urge that the word “horizon” means a flat, parallel boundary line which would be drawn at 17,350 feet, the district court determined that the parties intended it to mean “a body of material or a stratum found below the earth’s surface, generally considered to be a bed of sand or other material which contains oil, gas, and other minerals ...” We agree with this definition which we find consistent with the usage of the term in the oil and gas industry. See Williams & Meyers, Manual of Oil & Gas Terms, 566 (1991) (defining horizon as “a zone of a particular formation ... of sufficient porosity and permeability to form a petroleum reservoir”). Thus, the horizontal lease boundary under the Lounsberry tract is 100 feet below the bottom of the Middle Miogyp, at whatever depth it is found throughout the leased tract.
Although it is not sufficiently established in the summary judgment record, it appears that a portion of the Lower Miogyp may be located above the horizontal lease boundary. Accordingly, on remand the district court is to determine the relative percentage ownership interests of the parties in the Lower Miogyp Sand, if any, and the resulting accounting that is due, if any.
REVERSED and RENDERED, IN PART, and REMANDED for further proceedings consistent herewith.
. As noted by our colleague. Judge Albert Tate, Jr., when Chief Judge of the Louisiana Third Circuit Court of Appeal, in Fremaux v. Buie, 212 So.2d 148, 149 n. 1 (La.App.1968), the "clause is named after its creator, the late Lawrence G. Pugh, Sr., a distinguished attorney of Crowley, Louisiana. Its purpose is to void the consequences of the holding of Louisiana mineral law, see Hunter Co. v. Shell Oil Co., 211 La. 893, 31 So.2d 10 (1947) and following, that production from a unit including a portion of a leased tract will maintain the lease in force as to all the lands covered by the lease.” (Law Review citations omitted.)
. When the well was drilled the formation was identified by the Louisiana Commissioner of Conservation as one sand having two lobes. As such it was known as the Miogypsionoides Sand. Upon further testing, however, the Commissioner issued orders 745-G and 745-H which divided the one Miogyp Sand into two separately defined zones, designated as the Middle Mio-gyp Sand and Lower Miogyp Sand.
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_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.
Charles W. JAMIESON, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 15143.
United States Court of Appeals Seventh Circuit.
Nov. 9, 1965.
Charles W. Jamieson, Chicago, 111., for petitioner.
Louis F. Oberdorfer, Asst. Atty. Gen., Tax Division, Lawrence B. Silver, Atty., U. S. Dept, of Justice, Washington, D. C., Lee A. Jackson, David O. Walter, Attys., Dept, of Justice, Washington, D. C., for respondent.
Before SCHNACKENBERG, CASTLE and KILEY, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Charles W. Jamieson, taxpayer, has by his petition asked us to review the decision of the Tax Court of the United States denying him a $600 deduction as an exemption for his wife on his separate income tax return for the year 1960.
During 1960 he was a 75-year-old retired lawyer and his wife was 61 years old. His separate income tax return stated that his wife was a bookkeeper and that she was filing a separate return. However, he deducted $600 as a personal exemption for his wife, as well as $1200 as two exemptions for himself, i. e., the regular personal exemption and the exemption allowed a taxpayer who is 65 years of age or over.
The Tax Court made findings embodying the foregoing facts, inter alia.
In this court taxpayer relies upon the following as propositions of law:
“Whether or not a taxpayer expending $2500.00 per year in entire support of himself and his wife, his dependent, can claim said wife, his dependent, when charging off one-half of the above expenditure for her support and claiming an exemption for that charge-off, under proper interpretation of the intent of the Congress, and the Code Secs. 151(b) and 152(a) 9 as liberally construed by case law and mixed law and fact theories; the Code under Title 26, and Supplements thereto, United States Supreme Court case law, that of the Courts of Appeals, District Courts and Illinois case law where applicable; please see index.
“Regulations Sec. 1 152-1 (a) (2) defines support as food, shelter, medical care and the like. This broad term and the like is, this Court will doubtlessly agree, sufficient to cover appellant’s needs in his favor where-ever arbitrarily held against appellant and, has latitude sufficient to help prove his case. (Such liberal verbiage is used in the instruction sheets 1964).”
We believe the controlling question before us is largely determined by the provisions of 26 U.S.C.A. §§ 151 and 152, which, insofar as pertaining hereto, we set forth below.
Sec. 151. Allowance of Deductions for Personal Exemptions
(a) Allowance of deductions. — In the case of an individual, the exemptions provided by this section shall be allowed as deductions in computing taxable income.
(b) Taxpayer and spouse. — An exemption of $600 for the taxpayer; and an additional exemption of $600 for the spouse of the taxpayer if a separate return is made by the taxpayer, and if the spouse, for the calendar year in which the taxable year of the taxpayer begins, has no gross income and is not the dependent of anq^her taxpayer.
-K * ' * * * *
Sec. 152. Dependent Defined.
(a) General definition. — For purposes of this subtitle, the term “dependent” means any of the following individuals over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer * * «• .
(9) An individual [other than an individual who at any time during the taxable year was the spouse, determined without regard to section 153, of the taxpayer] who, for the taxable year of the taxpayer, has as his principal place of abode the home of the taxpayer and is a member of the taxpayer’s household, * * *
In the case at bar respondent determined that taxpayer’s wife had a gross income during the taxable year. This was not disputed by him. If a husband and a wife file separate returns, each must take his or her own exemption.
Under § 151(b), a husband, as a taxpayer, may not on his separate return claim a deduction for a $600 personal exemption of his wife, in addition to his own $600 exemption, where she had gross income during the husband’s taxable year.
As to taxpayer’s propositions of law aforesaid, which assert that he expended $2500 per year in entire support of himself and his wife, charging off one-half thereof for her support and claiming an exemption therefor, the answer is set forth in our holdings in this opinion. There is nothing which may be added which promises to clear up the obvious confusion in taxpayer’s mind, which we regret.
For these reasons the judgment of the Tax Court is affirmed.
Judgment affirmed.
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:
|
songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
WISCONSIN CENTRAL RAILWAY COMPANY, Debtor, et al., Appellants, v. Edgar F. ZELLE, as Trustee for Wisconsin Central Railway Company, Debtor, et al.
No. 14744.
United States Court of Appeals Eighth Circuit.
Dec. 29, 1952.
Abraham K. Weber, New York City, for appellants.
William J. Quinn, St. Paul, Minn., E. E. Boyner, Minneapolis, Minn., Robert G. Gehrz, St. Paul, Minn., Bergmann Richards, Josiah E. Brill, Minneapolis, Minn., Irving J. Galpeer, New York City, Llenry Mitchell, Minneapolis, Minn., Leonard H. Murray, James E. Dorsey, Donald West, Minneapolis, Minn., W. G. Murphy, Paul D. Miller, New York City, Thomas P. Helmey, Minneapolis, Minn., Frank H. Detweiler, New York City, Frank Janes, Minneapolis, Minn., William A. W. Steward, Reese D. Alsop, New York City, George W. Morgan, Samuel H. Morgan, St. Paul, Minn., and A. Albert Minton and Cornelius W. Wickersham, New York City, for appellees.
PER CURIAM.
Appeal from District Court dismissed with cost, on motion of appellees.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_casetyp1_7-2
|
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 "economic activity and regulation".
In re McMILLAN, RAPP & CO.
Nos. 7720-7723.
Circuit Court of Appeals, Third Circuit
Nov. 3, 1941.
David F. Maxwell, of Philadelphia, Pa. (George B. Clothier, Leon J. Obermayer, and Edmonds, Obermayer & Rebmann, all of Philadelphia, Pa., on the brief), for appellant.
Roland C. Heisler, of Philadelphia, Pa. (Drinker, Biddle & Reath, of Philadelphia, Pa., on the brief), for appellees Leaver and Weiss.
Francis F. Burch, of Philadelphia, Pa. (George O. Philips, of Philadelphia, Pa., on. the brief), for appellee Thomas.
Paul Freeman, of Philadelphia, Pa. (Freeman, Fox & Steeble, of Philadelphia, Pa., on the brief), for appellee Freeman.
Before CLARK, JONES, and GOODRICH, Circuit Judges.
JONES, Circuit Judge.
The trustee of McMillan, Rapp & Company, bankrupt, appeals from four separate decrees of the District Court awarding to each of four customers of the bankrupt reclamation of securities which they had severally purchased through the bankrupt but which remained in the bankrupt’s possession at the date of bankruptcy.
In so far as the facts are legally significant, they are substantially the same with respect to the claims of three of the customers, viz., Leaver (No. 7720), Weiss (No. 7721) and Thomas (No. 7722). Moreover, the factual differences, which will be noted, with respect to the claim of the fourth customer, Freeman (No. 7723), do not seem to distinguish his claim from the others.
McMillan, Rapp & Company, a corporation, was adjudicated bankrupt on February 20, 1940, upon a voluntary petition. The company had been engaged in the investment business in Philadelphia and in some instances had acted as a stockbroker. Among the assets found by the trustee in the bankrupt’s possession were various certificates, in the name of one or another of the four claimants, for stock which they had severally purchased through the bankrupt, and had paid for in full, either with stock subscription warrants and cash or entirely with cash, all within four months of the date of bankruptcy and while the bankrupt was insolvent.
In the cases of Leaver, Weiss and Thomas, the stock certificates in their respective names were in separate envelopes each bearing the name of the particular owner of the enclosed shares and were so deposited in the bankrupt’s safe deposit box, where they remained until the date of bankruptcy. None of these certificates, nor the certificates in Freeman’s name which also remained in the bankrupt’s possession, had been endorsed nor were they accompanied by any stock transfer power. In each instance (except for some bank stock purchased by Weiss) the bankrupt first accepted delivery of the purchased stock in a street name and thereafter sent the certificates in the street name to the transfer agent for transfer to the particular customers. In the case of Freeman, his purchase of the stock to which he lays claim was begun on margin but, prior to the bankruptcy, he had paid his debit balance in full and had demanded the certificates for his stock which were transferred to his name but were not delivered by the bankrupt which retained possession thereof. None of the claimants was indebted to the bankrupt.
The principal question here involved is whether the claimants made out a case for reclamation within the requirements of Section 60, sub. e of the Bankruptcy Act, as amended.
There is an incidental question which was raised below as to whether the bankrupt was a stockbroker. The referee found that it was. Upon that finding depends the applicability of Section 60, sub. e. The District Court, upon a review, approved the referee’s finding in such regard and, in so doing, we think acted properly. Notwithstanding the bankrupt had generally conducted an investment business and, consequently, had ordinarily acted as principal and not as agent, it is plain that, in respect of the stock purchases involved in the present appeals, the bankrupt acted as broker or agent for these claimants. It follows, as a matter of law, that the instant claims are subject to the provisions of Section 60, sub. e. Do they satisfy the statutory requirements ?
Paragraph (2) of Section 60, sub. e provides that “All property at any time received, acquired, or held by a stockbroker from or for the account of customers, except cash customers who ar,e able to identify specifically their property in the manner prescribed, in paragraph (4) of this subdivision and the proceeds of all customers’ property rightfully transferred or unlawfully converted by the stockbroker, shall constitute a single and separate fund; and all customers except such cash customers shall constitute a single and separate class of creditors, entitled to share ratably in such fund on the basis of their respective net equities as of the date of bankruptcy: * * (Emphasis supplied.)
“Cash customers” are defined by paragraph (1) of Section 60, sub. e as being “customers entitled to immediate possession of such securities without the payment of any sum to the stockbroker.” Under this definition the present claimants were cash customers. They had fully paid for their stock purchases and were not otherwise indebted to the bankrupt.
As to the manner of identifying specifically the property of cash customers, paragraph (4) of Section 60, sub. e, stripped of ' matter not presently applicable, provides that “ * * * no securities * * * received by a stockbroker * * * for the account of a cash customer * * * pursuant to purchase * * * shall * * * be deemed to be specifically identified, unless such property remained in its identical form in the stockbroker’s possession until the date of bankruptcy, * * (Emphasis supplied.) An alternate means of identifying property is also prescribed but is not presently important; as it is unavailable to these claimants under the attending circumstances. All of the stock involved in the pending cases was purchased by the stockbroker for the claimants’ accounts within four months of the bankruptcy and while the stockbroker was insolvent.
The question, therefore, is whether . the stock received by the stockbroker for the respective accounts of these ,cqsh customers pursuant to purchase- remained “in its identical form in the stockbroker’s possession until the date of bankruptcy.” The learned court below held that it did and, with that conclusion, we agree. The referee, who had held to the contrary, treated the cash and stock subscription warrants which the customers had transferred to the stockbroker in payment of their purchases as being the property which had to remain in its identical form in order that the customers might be able to reclaim it after bankruptcy under the relevant clause of paragraph (4). Such a construction ignores the provision of paragraph (4) which makes it applicable to “securities * * * received by a stockbroker * * * for the account of a cash customer * * * pursuant to purchase.” Patently, this does not contemplate that the securities so received by the stockbroker shall be the property which the purchasers deposited or paid for their purchases. In the very nature of the transaction, a customer’s ownership of the new securities does not arise until they are received by the stockbroker for the customer’s account pursuant to the authorized purchase. The trustee, presumably perceiving the evident error in the referee’s construction, now argues that the securities which the stockbroker received for the accounts of the present claimants pursuant to purchase were the certificates in street name, whereof the stockbroker first accepted delivery, and which, admittedly, did not remain in their identical form in the stockbroker’s possession until the date of bankruptcy. But, the transfer of the certificates out of street name into the names of the purchasers was but a step in the purchase pursuant to which the stockbroker ultimately received the certificates in the purchasers’ names for their accounts.
We conclude therefore that where, prior to a stockbroker’s bankruptcy, a customer purchases securities through the broker for cash or its equivalent in the ordinary course of business and the broker receives, pursuant to the purchase for the customer’s account, stock certificates in the name of the purchaser which remain in their identical form in the broker’s possession until the date of bankruptcy, the customer, if he is not indebted to the broker, may thereafter claim the stock as his own free and unencumbered property. This rule obtains regardless of how long before the stockbroker’s bankruptcy the transaction took place and regardless oí the broker’s current insolvency so long as there is no question of the creation of a preference which is otherwise taken care of by Section 60, sub. e and as to which both the period before bankruptcy and the broker’s insolvency are material. We believe that the construction which we thus place upon paragraph (4) is what the plain words of the statute reasonably require and that, so construed, the provision effectuates the evident intent of Congress.
Section 60, sub. e is new, having been introduced into the bankruptcy law by the Chandler Act. So far as we are advised, paragraph (4) has not heretofore been judicially construed except by the District Court in the instant cases. Clearly, the purpose of the provision was to correct a very definite and well-recognized situation. Prior to the enactment of Section 60, sub. e, inequalities had developed in the distribution of a stockbroker’s estate in bankruptcy due to the fact that some purchasers of stock on margin or depositors of stock or other property were able to lift their stocks or property from the possession of the bankrupt’s estate upon paying any debit balances due by them, while others were left with nothing more than claims as general creditors of the bankrupt because there was insufficient stock of a particular kind in the estate or none at all to allocate to their accounts. So that, although two customers stood in the same relation to the stockbroker as the owners of stock acquired or held for them subject to debit balances, one was able, upon the stockbroker's bankruptcy, to obtain preferential treatment over the other depending upon the mere accident of circumstance.
This inequality among claimants of the same status had long been noted and the need for its correction had been the subject of considered comment. It was to remedy this inequity that Congress inserted Section 60, sub. e into the bankruptcy law with the enactment of the Chandler Act. The effect of Section 60, sub. e was to place all margin customers of a stockbroker in a single and separate class whose participation in the distribution of the stockbroker’s estate in bankruptcy is limited to the single and separate fund composed of the proceeds of such customer’s property, rightfully transferred or unlawfully converted by the stockbroker, and in which fund such customers share ratably according to their respective net equities as of the date of bankruptcy. Cash customers whose property had likewise been transferred or converted by the stockbroker are subject to the same provision unless the property (received by the stockbroker from them for sale, etc., or for them pursuant to purchase) remains in its identical form, as so received, until the date of bankruptcy or unless such property or any substitutes therefor or proceeds thereof were, more than four months prior to bankruptcy or while the stockbroker was solvent, allocated to or physically set aside for such customers and so remained to the date of bankruptcy.
The differentiation in the instances above noted between cash customers owning property identifiable in the broker’s hands and margin customers is "quite understandable. It is one thing for Congress in the exercise of its constitutional power respecting bankruptcies to promote equality among claimants of the same standing, but it would be quite a different thing for Congress to defeat arbitrarily an independent property right by appropriating the ascertainable and unpledged property of one person for the augmentation of the bankrupt estate of another, merely because the former’s property happened to be found in the possession of the latter. Cf. Gorman v. Littlefield, 229 U.S. 19, 25, 33 S.Ct. 690, 57 L.Ed. 1047. But this, Congress has neither done nor attempted when Section 60, sub. e is construed as we have hereinbefore construed it.
What we have already said applies equally to the claim of Freeman. He was likewise a cash customer prior to the broker’s bankruptcy. Whether the transfer to Freeman of the shares which he had purchased and had fully paid for was the creation of an intended preference is a matter to be raised under other relevant provisions of the Bankruptcy Act as allowed for by paragraph (5) of Section 60, sub. e. As in the case of the other three claimants, Freeman is also entitled to reclaim.
The decrees of the District Court at Nos. 7720, 7721, 7722 and 7723 are affirmed at the costs of the bankrupt estate.
Act of June 22, 1938, c. 575 § 1, 52 Stat. 869, 11 TJ.S.C.A. § 96, Pht.Supp. pp. 168, 169.
Stocks being considered fungible property, a customer’s claim against a bankrupt stockbroker for a certain number of shares of a particular stock has been traceable merely from the fact that the broker had in Ms possession at the time of bankruptcy a sufficient number of shares of the same kind of stock even though the certificates for the stock acquired or held by the broker for the customer’s account had been otherwise disposed of or pledged by the broker. Gorman v. Littlefield, 229 U.S 19, 24, 25, 33 S.Ct. 690, 57 L.Ed. 1047; Richardson v. Shaw, 209 U.S. 365, 379, 28 S.Ct. 512, 52 L.Ed. 835, 14 Ann.Cas. 981; Lavien v. Norman, 1 Cir., 55 F.2d 91, 96. This rule was the the consequence of the generally prevailing rule of property that title to stocks purchased or held by a broker for the account of a customer is in the customer, the broker being merely a pledgee thereof as security for the payment of the customer’s debt to the broker. Richardson v. Shaw, supra. And in Massachusetts, where it has been held that title to such stock remains in the broker subject to Ms executory contract to deliver the stock to the customer upon the latter’s payment of the purchase price in full (Wood v. Hayes, 15 Gray 375), the bankruptcy of the broker has been deemed to work a demand and tender by the customer wherefore title to the stock so acquired or held by the broker vests in the customer who can then obtain possession thereof from the trustee in bankruptcy by paying his debit balance. Leonard v. Hunt, 1 Cir., 36 F.2d 13, 15; In re Swift, 1 Cir., 112 F. 315, 318, 319.
E. g., Margin Stocks, 35 Harvard Law Review (1922) 485, 489; The Rights of a Customer in Collateral Security Given a Stockbroker, 22 Columbia Law Review (1922) 155, 158; Rights and Obligations of Customers in Stockbrokerago Bankruptcies, 37 Harvard Law Review (1924) 860, 879.
See Report of House Judiciary Committee, 75th Congress, 1st Sess.Rep. No. 1409 at p. 31.
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:
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songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
James C. HADSELL, Plaintiff-Appellee, v. Larry H. HOOVER, Defendant-Appellant. Computronic Industries Corporation et al., Defendants.
No. 73-1110.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted Aug. 13, 1973.
Decided Sept. 13, 1973.
William R. Fishman, Denver, Colo., for plaintiff-appellee.
James W. Heyer, Lakewood, Colo., for defendant-appellant.
Before LEWIS, BARNES and MC-WILLIAMS, Circuit Judges.
Honorable Stanley N. Barnes of the Ninth Circuit, sitting by designation.
BARNES, Circuit Judge:
This appeal is from a judgment entered upon a jury verdict against appellant and others for fraud under the federal securities laws. Plaintiff-appellee, Hadsell, filed his complaint in the United States District Court for the District of Colorado, alleging, inter alia, conduct in violation of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j, 48 Stat. 891, and Rule 10b-5, 17 C.F.R. § 240.10b-5, implemented thereunder; and Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q, 48 Stat. 84. Only defendant-appellant Hoover, one of several defendants who received the adverse judgment in the matter below, has appealed. Our jurisdiction rests in 28 U.S.C. § 1291.
At all material times, Hoover was president of Western General Corporation (herein Western General or Western), a New York corporation with offices in Denver, Colorado. Western was a holding company with assets consisting of securities and real estate investments, most of them pledged or mortgaged. Through Hoover, Western solicited operating funds from Hadsell. Hadsell refused an offer to loan Western money, but agreed to purchase unregistered stock held by Western in General Energy Corporation (herein General Energy). Thirty thousand shares of General Energy were sold to Hadsell for $75,000 through two transactions: twenty thousand shares were sold on December 11, 1968, and an additional ten thousand shares were sold on January 11, 1969. The price per share each time was $2.50 per share. The alleged fraud occurred with respect to these two transactions.
The following material evidence was admitted at trial in support of a finding of fraud:
(1) Western General’s repurchase agreement, (Plaintiff’s Ex. 3):
Western agreed to repurchase the General Energy stock from Hadsell one year from the date of sale (December 11, 1969) at a price of $3.50 per share. At the time of the sale to Hadsell, registered shares were traded over the counter at $6.00. The shares which Hadsell purchased, however, were unregistered and could not have been sold over the counter at any price. Hadsell knew this, and therefore it seems obvious to us that he primarily relied upon the repurchase agreement in making his purchases. Subsequent to the purchase, both Western and General Energy became insolvent; the shares were worthless and Western was unable to repurchase. (Hadsell still has the stock; he has made no efforts to register it so as to effect a secondary sale.)
(2) Western General’s financial statement:
Prior to the purchases, Hoover showed Hadsell a financial statement purportedly showing the net worth of Western General as of September 30, 1968, and discussed the statement in detail with him. It, and he, indicated that Western General was worth “substantially more” than $3,000,000 (R.T. at 27), and that “all its companies were operating at a profit” (R.T. at 29). At trial, Hadsell proved that Western General, in the fall of 1968, and on or about September 30, 1968, had operating expenses of $3,000 per month, but no income; was some $3,200,000 in debt, and had current liabilities (due in one year) of $309,000 (R.T. at 133). It had overdue or pressing lease obligations with respect to certain of its real estate investments. None of this was told Hadsell. No profit and loss statement was shown Hadsell (R.T. at 109). Hadsell necessarily relied upon the financial stability of Western General if he relied upon its repurchase agreement in making the stock purchases of General Energy.
(3) Material misstatements or omissions :
The following misstatements or omissions were made incident to the sale of the General Energy stock:
(a) The accountant who prepared the financial statement of Western General as of September 30, 1968, (Ex. 1), issued a “qualification letter” (Ex. 2) which became a part of the statement (R.T. at 181-82), to the effect that he could not verify assets and accounts receivable, nor could he verify the value of the assets included in the statement. Hoover had received the letter prior to his discussion with Hadsell, but there is no indication in the record that he showed the letter to Hadsell nor that he mentioned it to him.
(b) In discussing the financial statement with Hadsell, Hoover represented that the listed assets were worth more than they were indicated on the statement. (R.T. at 27).
(c) Hoover failed to indicate that Western General was planning to liquidate some of its assets to pay off debts.
(d) Hadsell was not informed that certain parties would receivS commissions for obtaining the General Energy stock sale to Hadsell, and that the commissions would be taken from the receipts of the transactions. (R.T. at 38).
(4) Computronic Industries:
Computronic Industries Corporation (herein Computronic), is a corporation whose stock was traded over the counter. After the sale of General Energy stock to Hadsell, Western General encountered further financial difficulties. An arrangement was made (Ex. 9) whereby almost all Western General’s assets were transferred to- Computronic.
Hadsell was not informed by Western General of the transfer of its assets. Western General retained the obligation to Hadsell, however, together with other liabilities and some “three to four hundred thousand shares of Computronic stock.” (R.T. at 146).
Hadsell learned of this, and his attorney made demand upon Computronic to assume Western General’s obligation to Hadsell under the repurchase agreement. Computronic agreed, and assumed the obligation. Hadsell was then shown two financial statements indicating the net worth of Computronic as of August 31, 1969; one was audited and indicated a net worth of $4,894,273, the second was unaudited and indicated a net worth of $5,334,622.13. It was signed by Mr. Hoover (Ex. 10). The audited statement was later withdrawn because the Securities and Exchange Commission objected to a lack of proof of the value of the underlying assets. At the time of trial, Computronic was insolvent.
(5) Promissory notes:
Computronic assumed the Western General obligation to repurchase the General Energy stock from Hadsell by executing three promissory notes for a total amount of $115,400, $10,400 more than the original repurchase agreement called for. The notes were issued on January 15, 1970, and were due in 75 days. Computronic retained the option to make payment by delivery of certain irrevocable letters of credit on the Bank of Asia, Bangkok, Thailand. Hadsell did not receive payment of the notes, either in the form of cash, or letters of credit.
The matter was tried before a jury and a judgment was entered upon a verdict against Hoover and three other defendants.- Following the verdict, the defendants unsuccessfully moved for a judgment notwithstanding the verdict.
On appeal, Hoover does “. . . not contest the credibility or sufficiency of the evidence . . .” (Appellant’s Brief at 5.) He does not deny that when there is conflicting testimony, “the resolution of the jury is conclusive”. (id.) Rather, he argues that Hadsell does not have a cause of action pursuant to the federal securities laws. At best, Hoover maintains there exists only an action for breach of contract with respect to the repurchase agreement. He also argues that “[tjhere was no fraud in connection with the purchase of securities involved here. The purity of that sale was unsullied.” (Appellant’s Brief at 16.)
This argument, however, is in direct conflict with Hoover’s statement that he does not contest the credibility or sufficiency of the evidence. We do not find it necessary to determine which position Hoover intends to rely upon, because we find that there was sufficient substantial evidence to warrant a jury in finding a scheme to defraud. It did so. We therefore confine our analysis to the question of whether Hadsell made out an actionable claim under the federal securities laws, or whether his only remedy was a common law claim for breach of contract.
Hoover relies upon Seward v. Hammond, 8 F.R.D. 457 (D.C.Mass.1948), where a district court held that a failure to perform under an agreement in which the plaintiff was to induce another to sell stock in return for the defendant’s payment of money was not a securities fraud, but a breach of contract. Cf. Fuller v. F. I. Dupont, Glore, Forgan & Co., 54 F.R.D. 557 (D.C.Mo.1971). In Richardson v. MacArthur, 451 F.2d 35 (10th Cir. 1971), this court announced the rule for determining whether a claim is one actionable under the federal securities laws or under common law contract.
“In short, whether the failure to follow through on an agreement to purchase or sell stock is a mere breach of a contract or whether it amounts to a manipulative or deceptive device, or a contrivance in contravention of § 10(b) depends upon the facts and circumstances developed at trial.” (Footnotes omitted.) Richardson v. MacArthur, supra, at 40. Cf. also: Brod v. Perlow, 375 F.2d 393 (2nd Cir. 1967); Allico v. Amalgamated, 397 F.2d 727 (7th Cir. 1968).
As Judge Hill stated in 1965, a wide and broad interpretation of the law is required by the definitions in the federal law as to what is a “purchase”, a “sale”, or a “security”.
“It is not necessary to allege or prove common law fraud to make out a ease under the statute and rule (Xb-5). It is only necessary to prove one of the prohibited actions such as the material' misstatement of fact or omission to state a material fact.” Stevens v. Vowell, 343 F.2d 374, 379 (10th Cir. 1965).
Immediately before the last statement quoted, this circuit held that the rule makes it unlawful to
“. . . Employ any device, scheme or artifice to defraud; make any untrue statement of a material fact or* to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person. The validity of this rule has been upheld as a lawful exercise of the Commission’s power. Hooper v. Mountain States Securities Corporation, 5th Cir., 282 F.2d 195, cert, denied, 365 U.S. 814, [81 S.Ct. 695, 5 L.Ed.2d 693]. . . .” (id. at 379.)
And the same opinion holds that proof of but one prohibited action (such as a material misstatement, or the omission to state a material fact) makes out a case, citing three Ninth Circuit cases.
When we consider the broad remedial policies of the federal securities laws advocated and advanced by our Supreme Court (J. I. Case v. Borak, 377 U.S. 426, 431-432, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), and SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963)) such policies are best served by such pronouncements as those already enunciated by this circuit, and as quoted above, we have no difficulty in holding that common law breach of contract relief cannot be plaintiff’s only remedy below. See also: Mitchell v. Texas Gulf Sulphur Co., 446 F.2d 90, 96-99 (10th Cir. 1971), cert, denied, 404 U.S. 1004, 92 S.Ct. 564, 30 L.Ed.2d 558 (1971).
Upon the record, we find that the facts and circumstances developed at trial were clearly sufficient to indicate a scheme to defraud within the meaning of Section 10(b) of the Securities and Exchange Act of 1934.
For these reasons, the judgment of the district court entered upon a verdict against Hoover and for Hadsell is affirmed.
. The briefs are not clear on this issue. Both parties agree on the fact that all or most all the assets were transferred by Western General to Computronic, and the record so states (R.T. at 148), but the method whereby this was effected is not indicated. We conclude that Western General received 5,000,000 shares of Computronic stock in return for most of its assets.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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sc_adminaction_is
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
DeVRIES et al. v. BAUMGARTNER’S ELECTRIC CONSTRUCTION CO.
No. 551.
Decided May 18, 1959.
Louis Sherman and Joseph M. Stone for petitioners.
Melvin T. Woods for respondent.
Per Curiam.
The petition for writ of certiorari is granted. The judgment is reversed. San Diego Building Trades Council v. Garmon, ante, p. 236.
Mr. Justice Clark, Mr. Justice Harlan,'Mr. Justice Whittaker, and Mr. Justice Stewart dissent for the reasons set forth in the concurring opinion in San Diego Building Trades Council v. Garmon, ante, pp. 236, 249.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
sc_caseorigin
|
094
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
GILLESPIE, ADMINISTRATRIX v. UNITED STATES STEEL CORP.
No. 10.
Argued October 13, 1964.
Decided December 7, 1964.
Jack G. Day argued the cause for petitioner. With him on the brief was Bernard A. Berkman.
Thomas V. Koykka argued the cause for respondent. With him on the brief were McAlister Marshall and Robert B. Preston.
Mr. Justice Black
delivered the opinion of the Court.
The petitioner, administratrix of the estate of her son Daniel Gillespie, brought this action in federal court against the respondent shipowner-employer to recover damages for Gillespie’s death, which was alleged to have occurred when he fell and was drowned while working as a seaman on respondent’s ship docked in Ohio. She claimed a right to recover for the benefit of herself and of the decedent’s dependent brother and sisters under the Jones Act, which subjects employers to liability if by negligence they cause a seaman’s injury or death. She also claimed a right of recovery under the Ohio wrongful death statute because the vessel allegedly was not seaworthy as required by the “general maritime law.” The complaint in addition sought damages for Gillespie’s pain and suffering before he died,, based on the Jones Act and the general maritime law, causes of action which petitioner said survived Gillespie’s death by force of the Jones Act itself and the Ohio survival statute, respectively. The District Judge, holding that the Jones Act supplied the exclusive remedy, on motion of respondent struck all parts of the complaint which referred to the Ohio statutes or to unseaworthiness. He also struck all reference to recovery for the benefit of the brother and sisters of the decedent, who respondent had argued were not beneficiaries entitled to recovery under the Jones Act while their mother was living.
Petitioner immediately appealed to the Court of Appeals. Respondent moved to dismiss the appeal on the ground that.the ruling appealed from was not a “final” decision of the District Court as required by 28 U. S. C. § 1291 (1958 ed.). Thereupon petitioner admin-istratrix, this time joined by the brother and sisters, filed in the Court of Appeals a petition for mandamus or other appropriate writ commanding the District Judge to vacate his original order and enter a new one either denying the motion to strike or in the alternative granting the motion but including also “the requisite written statement to effectively render his said order appealable within the provisions of 28 U. S. C. A. § 1292 (b),” a statute providing for appeal of certain interlocutory orders. Without definitely deciding whether mandamus would have been appropriate in this case or deciding the “close” question of appealability, the Court of Appeals proceeded to determine the controversy “on the merits as though it were submitted on an appeal”; this the court said it felt free to do since its resolution of the merits did not prejudice respondent in any way, because it sustained respondent’s contentions by denying the petition for mandamus and affirming the District Court’s order. 321 F. 2d 518. Petitioner brought the case here, and we granted certio-rari. 375 U. S. 962.
I.
In this.Court respondent joins petitioner in urging us to hold that 28 U. S. C. § 1291 (1958 ed.) does not require us to dismiss this case and that we can and should decide the validity of the. District Court’s order to strike. We agrée. Under § 129Í an appeal may be taken from any “final” order of a district court. But as this Court often has pointed out, a decision “final” within the meaning of § 1291 does not necessarily mean the last order possible to be made in a case. Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 545. And our casés long have recognized that whether a ruling is “final” within the meaning of § 1291 is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and that it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the “twilight zone” of finality. Because of this difficulty this Court has held that the requirement of finality is to be given a “practical rather than a technical construction.” Cohen v. Beneficial Industrial Loan Corp., supra, 337 U. S., at 546. See also Brown Shoe Co. v. United States, 370 U. S. 294, 306; Bronson v. Railroad Co., 2 Black 524, 531; Forgay v. Conrad, 6 How. 201, 203. Dickinson v. Petroleum Conversion Corp., 338 U. S. 507, 511, pointed out that in deciding the question of finality the most important competing considerations are “the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.” Such competing considerations are shown by the record in the case before us. It is true that the review of this case by the Court of Appeals could be called “piecemeal”; but it does not appear that the inconvenience and cost of trying this case will be greater because the Court of Appeals decided. the issues raised instead of compelling the parties to go to trial with them unanswered. We cannot say that the Court of Appeals chose wrongly under the circumstances. And it seems clear now that the case is before us that the eventual costs, as all the parties recognize, will certainly be less if we now pass on the questions presented here rather than send the ease back with those issues undecided. Moreover, delay of perhaps a number of years in having the brother’s and sisters’ rights determined might work a great injustice on them, since the claims for recovery for their benefit have been effectively cut off so long as the District. Judge’s ruling stands. And while their claims are not formally severable so as to make the court’s order unquestionably appealable as to them, cf. Dickinson v. Petroleum Conversion Corp., supra, there certainly is ample reason to view their claims as severable in deciding the issue of finality, particularly since the brother and sisters were separate parties in the petition for extraordinary relief. Cf. Swift & Co. Packers v. Compania Colombiana Del Caribe, S. A., 339 U. S. 684, 688-689; Gumbel v. Pitkin, 113 U. S. 545, 548. Furthermore, in United States v. General Motors Corp., 323 U. S. 373, 377, this Court contrary to its usual practice reviewed a trial court’s refusal to permit proof of certain items of damages in a case not yet fully tried, because the ruling was “fundamental. to the further conduct of the, case.” For these same reasons this Court reviewed such a ruling in Land v. Dollar, 330 U. S. 731, 734, n. 2, and Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 685, n. 3, where, as here, the case had not yet been fully tried. And see Cohen v. Beneficial Industrial Loan Corp., supra, 337 U. S., at 545-547. We think that the questions presented here are equally “fundamental to the further conduct of the case.” It is true that if the District Judge had certified the case to the Court of Appeals under 28 U. S. C. § 1292 (b) (1958 ed.), the appeal unquestionably would have been proper; in light of the circumstances we believe that the Court of Appeals properly implemented the same policy Congress sought to promote in § 1292 (b) by treating this obviously marginal case as final, and appealable under 28 U. S. C. § 1291 (1958 ed.). We therefore proceed to consider the correctness of the Court of Appeals’ judgment.
II.
In 1930 this Court held in Lindgren v. United States, 281 U. S. 38, that in passing § 33 of the Merchant Marine Act, 1920, now 46 U. S. C. § 688 (1958 ed.), commonly called the Jones Act, Congress provided an exclusive right of action for the death of seamen killed in the course of their employment, superseding all state death statutes which might otherwise be applied to maritime deaths, and, since the Act gave recovery only for negligence, precluding any possible recovery based on a theory of unseaworthiness. A strong appeal is now made that we overrule Lindgren because it is said to be unfair and incongruous in the light of some of our later cases which have liberalized the rights of seamen and nonseamen to recover on a theory of unseaworthiness for injuries, though not for death. No one of these cases, however, has cast doubt on the correctness of the interpretation of the Jones Act in Lindgren, based as it was on a careful study of the Act in the context of then-existing admiralty principles, decisions and statutes. The opinion in Lindgren particularly pointed out that prior to the Jones Act there had existed no federal right of action by statute or under the general maritime law to recover damages for wrongful death of a seaman, though some of the States did by statute authorize a right of recovery which admiralty would enforce. Congress, the Lindgren Court held, passed the Jones Act in order to give a uniform right of recovery for the death of every seaman. “It is plain,” the Court went on to say, “that the Merchant Marine Act is one of general application intended to bring about the uniformity in the exercise of admiralty jurisdiction required by the Constitution, and necessarily supersedes the application of the death statutes of the several States.” 281 U. S., at 44. Thirty-four years have passed since the Lindgren decision, and Congress has let the Jones Act stand with the interpretation this Court gave it. The decision was a reasonable one then. It provided the same remedy for injury or death for all seamen, the remedy that was and is provided for railroad workers in the Federal Employers’ Liability Act. Whatever may be this Court’s special responsibility for fashioning rules in maritime affairs, we do not believe that we should now disturb the settled plan of rights and liabilities established by the Jones Act.
Petitioner argues further that even if the only available remedy for death is under the Jones Act, the District Judge erred in refusing, to hold that the Jones Act provides for damages for death for the benefit of the brother and sisters of the decedent as well as for the mother. Their right of recovery, if any, depends on § 1 of the FELA, 45 U. S. C. § 51 (1958 ed.), which provides that recovery of damages for death shall be:
“for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee . . . .”
In Chicago, B. & Q. R. Co. v. Wells-Dickey Trust Co., 275 U. S. 161, 163, this Court, speaking through Mr. Justice Brandéis, held that this provision creates “three classes of possible beneficiaries. But the liability is in the alternative. It is to one of the three; not to the several classes collectively.” We are asked to overrule this case so as to give a right of recovery for the benefit of all the members of all three classes in every case of death. Both courts below refused to do so, and we agree. It is enough to say that we adhere to the Wells-Dickey holding, among other reasons because we agree that this interpretation of the Act -is plainly correct. Cf. Poff v. Pennsylvania R. Co., 327 U. S. 399.
One other aspect of this case remains to be mentioned. The complaint sought to recover damages for the estate because “decedent suffered severe personal injuries which caused him excruciating pain and mental anguish prior to his death.” Petitioner contends that the seaman’s claim for páin and suffering survives his death and can be brought on a theory of unseaworthiness by force of" the Ohio survival statute. The District Judge struck the reference to the Ohio survival statute from the complaint, and the Court of Appeals held that there was “no substantial basis, in this case,” for a claim for pain and suffering prior to death. There is,, of course, no doubt that the Jones Act through § 9 of the FELA, 45 U. S. C. § 59 (1958 ed.), provides for survival after the death of' the seaman of “[a]ny right of action given by this chapter,” i. e.j of his claim based on a theory of negligence. And we may assume, as we .have in the past, that after ■ death of the injured person a' state survival statute can preserve the cause of action for unseaworthiness, which would not survive under the genéral maritime law. In holding that petitioner had not stated a claim entitling her to recovery for the decedent’s pain and suffering the Court of Appeals relied on The Corsair, 145 U. S. 335, 348, a case brought in a federal court to recover damages under a Louisiana survival statute for alleged, pain and suffering prior to death by drowning where there was an interval of “about ten minutes” between the accident and death. The Court held shch damages could not be recovered there, saying:
“. . . there is no averment from which we .can gather that these pains and sufferings were not substantially cotemporaneous with her death.and inseparable as matter of law from it.”
Plainly this Court did not hold in The Corsair that damages cannot ever be recovered for physical and mental pain suffered prior to death by drowning. The case held merely that the averments of the plaintiff there did not justify awarding such damages in an action under the Louisiana survival statute. The Court’s language certainly did not preclude allowance of such damages in all circumstances under other laws, or even under the Louisiana statute in a case where pain and suffering were “not substantially cotemporaneous with . . . death and inseparable as matter of law from it.” In this day of liberality in allowing amendment of pleadings to achieve the ends of justice, the issue whether the decedent’s estate could recover here,for pain and suffering prior to death should not have been decided finally by the Court of Appeals on the basis of mere pleading. Therefore the question whether damages can be recovered for pain and suffering prior to death on the facts of this case will remain open. In all other respects the judgment of the Court of Appeals is
Affirmed.
41 Stat. 1007, 46 U. S. C. § 688 (1958 ed.):
“Any seaman who shall suffer personal injury in the course of his employment may; at his election,- maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.”
Ohio Rev. Code § 2125.01.
Ohio Rev. Code §2305.21.
“The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States ... except where a direct review may be had in the Supreme Court.”
Section 1292 (b) provides:
“When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit . an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless .the district judge or the Court of Appeals or a judge thereof shall so order.”
321 F. 2d 518,532.
No review is sought in this Court of the denial of the petition for mandamus»
See, e. g., The Tungus v. Skovgaard, 358 U. S. 588, 595, n. 9; Pope & Talbot, Inc. v. Hawn, 346 U. S. 406; Seas Shipping Co. v. Sieracki, 328 U. S. 85; Mahnich v. Southern S. S. Co., 321 U. S. 96.
Chelentis v. Luckenbach S. S. Co., 247 U. S. 372; The Harrisburg, 119 U. S. 199; cf. The Osceola, 189 U. S. 158.
Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479; Western Fuel Co. v. Garcia, 257 U. S. 233; cf. The Hamilton, 207 U. S. 398.
35 Stat. 65, as amended, 45 U. S. C. §§51-60 (1958 ed.).
See Fitzgerald v. United States Lines Co., 374 U. S. 16, 20-21, and cases there cited.
36 Stat. 291, 45 U. S. C. § 59 (1958 ed.):
“Any right of action given by this chapter to a person suffering ' injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children- of such employee, and, if none, then of such employee’s parents; and, if none, then of the next of kin. dependent upon .such employee, but in such cases there shall be only one recovery for. the same injury.”
“Presumably any claims, based on unseaworthiness, for damages accrued prior to the decedent’s death would survive, at least if a pertinent state statute is effective to bring about a survival of the seaman’s right.” Kernan v. American Dredging Co., 355 U. S. 426, 430, n. 4. See also Curtis v. A. Garcia y Cia., 241 F. 2d 30, 36-37. (C. A. 3d Cir.); Holland v. Steag, Inc., 143 F. Supp. 203, 205-206 (D. C. D. Mass.).
Cf. Just v. Chambers, 312 U. S. 383.
Cortes v. Baltimore Insular Line, Inc., 287 U. S. 367.
See Fed. Rules Civ. Proc. 15; Foman v. Davis, 371 U. S. 178; United States v. Hougham, 364 U. S. 310; cf. Conley v. Gibson, 355 U. S. 41.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
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004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
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032. Alabama Middle U.S. District Court
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045. Delaware U.S. District Court
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164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
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171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
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174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
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184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
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189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
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195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
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204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_jurisdiction
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
James E. McCALL v. C. L. SWAIN, Superintendent, Lorton Reformatory, et al., Appellants.
No. 73-2013.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 12, 1974.
Decided March 20, 1975.
David P. Sutton, Asst. Corp. Counsel for the District of Columbia, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellants.
Laurence Sarezky, with whom Ricardo M. Urbina, Washington, D. C., was on the brief, for appellee.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
Before MOORE, Senior Circuit Judge, and WRIGHT and ROBB, Circuit Judges.
Entered an appearance as student counsel pursuant to Rule 20 of the General Rules of this court.
Of the Second Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).
. 84 Stat. 473 et seq. (hereinafter cited as “the Court Reform Act”).
J. SKELLY WRIGHT, Circuit Judge:
We must decide today whether, under the District of Columbia Court Reform and Criminal Procedure Act of 1970, the United States District Court for the District of Columbia or the Superior Court of the District of Columbia has habeas corpus jurisdiction over an individual sentenced for local crimes by the District Court, when the habeas petition challenges the constitutionality of a local prison’s administrative decision to transfer the petitioner to maximum security confinement. We affirm Judge GeselTs ruling that habeas corpus jurisdiction over such cases is exclusively vested in the District Court.
I
Appellee McCall is confined at the Lorton Correctional Complex, an integral part of the District of Columbia correctional system which, by a special Act of Congress, was constructed outside the District in northwestern Virginia. Convicted of and sentenced for armed robbery and assault with a dangerous weapon by the United States District Court for the District of Columbia, appellee was committed to the custody of the Attorney General who, pursuant to 24 D.C. Code § 425 (1973), designated Lorton as the appropriate facility in which the sentence was to be served.
Following appellee’s alleged failure to report to his assigned place of duty at Lorton Reformatory’s Industrial Workhouse for an early morning prisoner count, he was granted a hearing before the prison Disciplinary Committee, which ordered him transferred to maximum security confinement for at least 45 days as punishment for his “lack of cooperation.” Having exhausted all available internal prison remedies, appellee, who claimed the hearing failed to comport with minimal due process standards, petitioned the District Court for a writ of habeas corpus and an order transferring him back to the general prison complex.
Ordered to show cause why the requested writ of habeas corpus should not issue, appellants — the Director of the District of Columbia Department of Corrections and the Superintendent of Lorton Reformatory — asserted that except in extreme situations courts should not interfere with internal prison regulations and their enforcement, and that as a proper exercise of prison discipline, the actions taken against appellee were in no way violative of his constitutional rights. On July 16, 1973, at a hearing held by Judge Gesell to consider the merits of the petition, appellants also challenged the District Court’s jurisdiction to entertain the petition, since 16 D.C.Code § 1901(c) (1973) specifies that petitions directed to persons other than federal. officers and employees must be filed in the Superior Court rather than in the District Court.
Although Judge Gesell did not believe that failure to join the Attorney General, to whose custody appellee had been committed upon sentencing, affected the outcome of the jurisdictional issue, he ordered the petition amended and the Attorney General joined as a party to the action. After considering the arguments on the jurisdictional question, Judge Gesell rendered an oral opinion holding that the District Court did have jurisdiction to entertain appellee’s petition:
[T]he Court feels that any defendant committed by this Court to the Attorney General is at all times under the custody and control and responsibility of the Attorney General and that in the event the Defendant is mistreated or denied rights which he has habeas corpus lies to a Federal Court to protect Federal prisoners. It is on that basis that I propose to proceed, the Attorney General having been brought into these proceedings which were initially simply against the state authorities. I do that in part because of a very definite feeling that Federal Courts must have a continuing interest and responsibility for defendants that are committed under its [sic] aegis to penitentiaries or jails. I do it also because this Court’s efforts to bring about reforms within the D. C. Correctional System have been extraordinarily ineffective and I have no reason to believe that the Superior Court will have any greater success than did this Court in attempting to improve correctional conditions within the D. C. Correctional Department.
* * *!{. *
* * * I think that this Court has an inherent power to act with respect to prisoners who have been committed by this Court.
Judge Gesell then sustained appellee’s petition on the merits and ordered that he be immediately released from maximum security confinement and returned to the general prison population. This appeal, based solely on the jurisdictional aspects of the order, followed.
II
When Congress enacted the District of Columbia Court Reform and Criminal Procedure Act of 1970, 84 Stat. 473 et seq., it accorded the Superior Court of the District of Columbia jurisdiction “relating to writs of habeas corpus directed to persons other than Federal officers and employees.” 11 D.C.Code § 921(a)(3)(A)(iii) (1973). More specifically, 16 D.C.Code § 1901 (1973) now provides that
(a) A person committed, detained, confined, or restrained from his lawful liberty within the District, under any color or pretense whatever, or a person in his behalf, may apply by petition to the appropriate court, or a judge thereof, for a writ of habeas corpus, to the end that the cause of the commitment, detainer, confinement, or restraint may be inquired into. * * *
(b) Petitions for writs directed to Federal officers and employees shall be filed in the United States District Court for the District of Columbia.
(c) Petitions for writs directed to any other person shall be filed in the Superior Court of the District of Columbia.
(Emphasis added.)
Although the issue addressed by the trial court, and the main issue • presented to us on this appeal, is whether the habeas corpus petition was directed against “Federal officers and employees” within the meaning of 16 D.C. Code § 1901(b), we feel constrained to first address the issue whether either the District Court or the Superior Court has jurisdiction over this petition, since Section 1901(a) appears to premise jurisdiction on petitioner’s being “committed, detained, confined, or restrained * * within the District,” and the District of Columbia Court of Appeals has construed that section literally to require petitioner’s confinement within the District’s territorial boundaries. See I. B. v. District of Columbia Dept. of Human Resources, Social Services Admin., D.C. Ct.App., 287 A.2d 827, 828-829 (1972). Noting the language of Section 1901 and citing Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948), the I. B. court reached its conclusion on the premise that “the Supreme Court has required that the jurisdictional prerequisites imposed on habeas corpus be construed literally.” 287 A.2d at 828. Although the Court Reform Act rendered the District of Columbia Court of Appeals the “highest court of the District of Columbia,” 11 D.C.Code § 102 (1973), and although we should accord the “greatest deference [to its] decisions,” see M.A.S., Inc. v. Van Curler Broadcasting Corp., D.D.C., 357 F.Supp. 686, 690 (1973), we do not believe such deference is appropriate in construing a statute relating to our own jurisdiction, see, e. g., Holly v. United States, 150 U.S.App.D.C. 287, 290, 464 F.2d 796, 799 (1972) (deference not accorded to DCCA where this court had jurisdiction to resolve criminal appeals on merits and statutory construction involved constitutional considerations), particularly when subsequent developments have indicated that the I. B. court’s reliance on Ahrens is no longer valid. See also Fitzgerald v. Sigler, D.D.C., 372 F.Supp. 889, 895-896 (1974), appeal pending, sub nom. Byrd v. Sigler, D.C.Cir. No. 74-1517.
16 D.C.Code § 1901 was first enacted in 1901 as 16 D.C.Code § 801. See Act of March 3, 1901, ch. 854, § 1143, 31 Stat. 1372. It originally provided:
Any person committed, detained, confined, or restrained from his lawful liberty within the District * * * may apply by petition to the supreme court of the District, or any justice thereof, for a writ of habeas corpus, to the end that the cause of such commitment, detainer, confinement, or restraint may be inquired into * *,
Despite the “within the District” language, early decisions by this court recognized the right of a habeas corpus petitioner to challenge matters relating to the day-to-day operation of a correctional institution located outside the District but operated under the supervisory control of the District’s Department of Corrections. See, e. g., Burns v. Welch, 81 U.S.App.D.C. 384, 385, 159 F.2d 29, 30 (1947) (inmate at Lorton Reformatory) (dictim); Sanders v. Bennett, 80 U.S.App.D.C. 32, 33, 148 F.2d 19, 20 (1945) (“Since the rule is a practical one based on common sense administration of justice we have held that the courts in the District of Columbia may issue writs of habeas corpus directed to those in direct charge of penal institutions of the District which happen to be located just outside its borders. This is because it is the plain duty of the District to adjudicate matters arising out of the conduct of its own institutions.”) (emphasis added; footnote omitted); cf. Sanders v. Allen, 69 App.D.C. 307, 308-309, 100 F.2d 717, 718-719 (1938) (challenge by inmate of District Workhouse at Occoquan, Virginia to procedural fairness of trial held in District). See also, e. g., Ex parte Flick, D.D.C., 76 F.Supp. 979, 981 (1948) (dictum), affirmed, sub nom. Flick v. Johnson, 85 U.S.App.D.C. 70, 174 F.2d 983, cert. denied, 338 U.S. 879, 70 S.Ct. 158, 94 L.Ed. 539 (1949) (although District Court' may entertain petitions from prisoners confined at Occoquan Workhouse or Lorton Reformatory because “these two institutions are part of the local District of Columbia penal system and are owned by the District of Columbia,” general rule requiring petitioner’s presence within territorial jurisdiction of court precludes entertainment of petition from individual incarcerated in Nuremburg, Germany). These cases were, however, effectively overruled by Ahrens v. Clark, supra, and McAffee v. Clemmer, 84 U.S. App.D.C. 57, 57-58, 171 F.2d 131, 131-132 (1948) (“those holdings [finding jurisdiction in the District Court over habeas corpus petitions filed by inmates of Lorton Reformatory and Occoquan Workhouse] are overruled by the Ahrens ease”).
In Ahrens the Supreme Court held that the habeas corpus petitioner’s presence within a federal District Court’s territorial jurisdiction is a prerequisite to the court’s jurisdiction over the petition. Petitioners in that case were 120 Germans being held at Ellis Island, New York for deportation to Germany. They filed their petitions, however, in the United States District Court for the District of Columbia. It is significant that in holding the District Court to be without jurisdiction over petitions filed by individuals confined or restrained outside the territorial jurisdiction of the court, the Supreme Court relied exclusively on the language of the predecessor to 28 U.S.C. § 2441 (1970), the general habeas corpus jurisdictional statute for federal courts, which provided that “[t]he several justices of the Supreme Court and the several judges of the circuit courts of appeal and of the district courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty.” Indeed, the opinion did not even mention the “within the District” language of 16 D.C. Code § 1901, which arguably would have been an easier statute under which to find a territorial limitation on the District Court’s jurisdiction.
Ahrens has since been substantially modified by the Supreme Court’s decision in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Again construing the “within their respective jurisdictions” language of 28 U.S.C. § 2241(a) (1970), the Braden Court held that “[s]o long as the custodian can be reached by service of process, the court can issue a writ ‘within its jurisdiction’ requiring that the prisoner be brought before the court for a hearing on his claim * * * even if the prisoner himself is confined outside the court’s territorial jurisdiction.” 410 U.S. at 495, 93 S.Ct. at 1130. “[W]e can no longer view [Ahrens] as establishing an inflexible jurisdictional rule.” Id. at 499 — 500, 93 S.Ct. at 1132. Venue considerations rather than an arbitrary jurisdictional obstacle would thereafter be employed to serve the policies which underlay the Ahrens decision.
The Braden rule, which involves a balancing of interests “[i]n terms of traditional venue considerations” and which looks to the “most desirable forum for the adjudication of the [habeas] claim,” see 410 U.S. at 493, 93 S.Ct. at 1129, has been adopted by this court. See, e. g., Eisel v. Secretary of the Army, 155 U.S.App.D.C. 366, 477 F.2d 1251 (1973) (determination of proper habeas forum for proceedings brought by commissioned inactive armed forces reservists seeking to obtain discharge as conscientious objectors). See also Reese v. United States Board of Parole, 162 U.S.App.D.C. 156, 158, 498 F.2d 698, 700 (1974) (habeas jurisdiction under 28 U.S.C. § 2241 lies within Arizona, where appellant was incarcerated, and District of Columbia, the judicial district where the custodian of the confinement was present; case remanded to District Court with instructions to transfer petition to United States District Court for the District of Arizona, a more convenient forum). Yet none of the post-Braden cases have considered the language of 16 D.C.Code § 1901 to be more restrictive than the language of 28 U.S.C. § 2241. Indeed, 16 D.C.Code § 1909 (1973) explicitly provides that “[t]his chapter [on habeas corpus within the District] does not affect any provision of chapter 153 of Title 28, United States Code [the federal habeas corpus chapter which includes. 28 U.S.C. § 2241].” The revision ndtes to Section 1909 clarify the congressional purpose in enacting it in 1964:
Section is new, and is inserted for the purpose of construction.
Chapter 153 of Title 28, United States Code, also relates to habeas corpus and applies to Federal courts generally, including the United States District Court for the District of Columbia. Upon the reenactment of the provisions carried into this chapter, they will constitute a later enactment than Title 28, United States Code, which was enacted in 1948. Considering the local character of the provisions carried into this chapter, there should not arise, as a general rule, even without this section, any question of conflict. However, this section is inserted as a precautionary measure.
It is therefore evident that Section 1901 does not restrict the jurisdiction of the District Court here in any way in which a federal District Court located elsewhere is not restricted. At most, Section 1901 is an additional jurisdictional statute relating to particular local problems and its “within the District” language should be construed in pari materia with the “within their respective jurisdictions” language of 28 U.S.C. § 2241. Thus, since 28 U.S.C. § 2241 has been interpreted by Braden and Eisel to allow federal District Courts with jurisdiction over the custodian to entertain habeas petitions from prisoners who are not physically confined within the territorial jurisdiction of the court, we hold that the phrase “within the District” does not prohibit a court — whether the District Court or the Superior Court — located in the District from entertaining habeas corpus petitions from individuals confined within the District’s correctional facilities located outside the District limits. In effect the Braden decision has resurrected the Sanders v. Bennett line of cases, and in light of the close nexus between the District and the correctional facilities it operates, traditional venue considerations indicate that this is the most appropriate jurisdiction in which to litigate those claims.
Ill
Having determined that a court within the District may entertain appellee’s habeas petition, we must address the issue decided by District Judge Ge-sell: does the Superior Court or the District Court have exclusive jurisdiction over a habeas petition filed within the District by a person serving a District Court sentence for local crimes, when the petition challenges the legality of the local prison’s administrative decision to transfer the petitioner to maximum security confinement. Since there is no pertinent legislative history disclosing congressional intent as to what individuals constitute “Federal officers and employees” within the meaning of Section 1901, we must look to the interpretation of that term in other contexts and to the policies underlying the Court Reform Act in order to determine whether this petition was properly entertained by the District Court.
As early as 1815, in an action of debt brought against a federal marshal for the escape of a federal prisoner from the state jailer to whose custody he had been committed, the Supreme Court observed in dictum that
[f]or certain purposes, and to certain intents, the state jail lawfully used by the United States, may be deemed to be the jail of the United States, and that keeper to be the keeper of the United States.
Randolph v. Donaldson, 13 U.S. (9 Cranch) 76, 86, 3 L.Ed. 662 (1815). See also, e. g., Fanning v. United States, 4 Cir., 72 F.2d 929, 931 (1934) (“state jail officers, in executing writs of a federal court, are officers of that court and subject to punishment for contempt for disobedience of warrants committing prisoners to their custody”); Wilson v. United States, 8 Cir., 26 F.2d 215, 216 (1928) (a state “jailer and his assistants, in holding a federal prisoner [under a statute admitting federal prisoners to the state’s jails for detention ], become pro hac vice officers of the United States court”; federal courts have statutory power to punish as a contempt “the misbehavior of any of the officers of said courts in their official transactions”); Ex parte Shores, N.D.Iowa, 195 F. 627, 630 (1912) (punishment of state jailer for contempt for disobedience of federal court’s order committing federal prisoner to his custody; “the [state jails], therefore, may be deemed jails of the United States * * * and the keepers thereof, though not strictly officers of the United States, are keepers for the United States of the prisoners committed to said jails by the courts of the United States”); In re Birdsong, S.D.Ga., 39 F. 599, 600 (1889); United States v. Martin, D.Ore., 17 F. 150, 153-155 (1883).
In Reid v. Covert, 351 U.S. 487, 76 S.Ct. 880, 100 L.Ed. 1352 (1956), reversed on other grounds after rehearing, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), the Supreme Court addressed the question whether the superintendent of the District of Columbia jail was an “officer or employee” of the United States within the meaning of 28 U.S.C. § 1252 (1970) with respect to the dependent wife of a United States Air Force sergeant who was transferred to that jail while awaiting retrial by court-martial at an air base in Washington, D. C. In holding the superintendent to be such an officer, the Court declared:
It has long been settled that an officer, while holding prisoners for the United States, is the “keeper of the United States,” Randolph v. Donaldson, 9 Cranch 76, 86, 3 L.Ed. 662, and, as such, is an officer of the United States. Since [the Superintendent] was required to “receive and keep” prisoners of the United States, he is, to that extent, an officer of the United States. It is not necessary to say, and we do not say, that the District of Columbia in these circumstances is an “agency” of the United States. For, whether the Government should maintain its own jail in the District of Columbia, or utilize the local facilities, is simply a matter of administrative convenience * * *. For all practical purposes, the District of Columbia jail is, in this case, the “jail of the United States,” Randolph v. Donaldson, supra, and the superintendent is its keeper. As the custodian of Mrs. Covert [the habeas corpus petitioner], a federal prisoner, appellant is an officer or employee of the United States for purposes of § 1252.
351 U.S. at 489-490, 76 S.Ct. at 882 (emphasis added).
This court, in the context of holding that the Attorney General’s congressional authorization to commit federal prisoners to the District of Columbia jail did not preclude a prisoner from availing himself of the Federal Tort Claims Act for an injury sustained in that jail, observed:
Since the Congress has clearly committed the custody and safekeeping of federal prisoners upon conviction to the Attorney General, then it must be true that in this instance the D.C. jailer was serving as the Attorney General's jailer; and it must also be true, or at least it does not appear to the contrary in the record before us, that, as to this federal prisoner, the Attorney General had some degree of power, commensurate with his continuing responsibility, to supervise the D.C. jailer in his handling of this particular prisoner. We note in this regard that, for purposes of the FTCA, Congress has defined “Employee of the [federal] government” as including “persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.” * * *
Close v. United States, 130 U.S.App.D.C. 125, 126, 397 F.2d 686, 687 (1968) (per curiam) (emphasis added). See also Witt v. United States, 2 Cir., 462 F.2d 1261, 1264 (1972); Fitzgerald v. Sigler, D.D.C., 372 F.Supp. 889, 896 (1974) (immediate custodian of federal prisoner detained at Lorton is “Federal officer” within meaning of 16 D.C.Code § 1901 with respect to habeas petition challenging detainer lodged against petitioner by United States Board of Parole based upon unexecuted parole violator warrant).
Similarly in our case, appellee was committed by the District Court to the custody of the Attorney General, who in turn ordered appellee incarcerated, pursuant to the discretionary power vested in him by Congress, at the Lorton Reformatory. As delegates or agents of the Attorney General, appellants are performing the functions with which he is legally charged; as such, particularly in light of the uniformity of those opinions holding the custodian of a federal prisoner to be a federal officer with respect to that prisoner, they must be deemed to be “Federal officers or employees” within the meaning of 16 D.C. Code § 1901. Congress must have been aware of those numerous precedents establishing the principle that state officials assuming responsibility for executing a warrant of commitment issued by a federal court are officers of that court and therefore “federal” officers for purposes of a variety of statutes; since Congress failed to expressly alter these precedents, we consider them viable in this analogous context.
Appellants nevertheless argue that “the basic aim of the Court Reform Act * * * was to provide for the resolution of distinctively local problems by a newly created local judiciary,” and that, since appellee “is not claiming procedural or constitutional irregularities either in connection with a federally imposed sentence or federal judicial proceedings * * * [but] is claiming that his constitutional rights were violated in connection with the internal operation of a prison by District officials,” habeas should lie in the Superior Court. In effect, appellants’ claim is that these policies inherent in the Act implicitly dictate that they not be deemed “Federal officers” with respect to appellee. Admittedly, the “overriding intent of Congress [in enacting the Court Reform Act was] to create a largely independent local court system,” Bland v. Rodgers, D.D.C., 332 F.Supp. 989, 991 (1971), and sources cited therein. See also, e. g., Palmore v. United States, 411 U.S. 389, 406-409, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). And within that system, federal courts were to exhibit “the customary deference accorded to the local administration of local matters.” See, e. g., Williams, District of Columbia Court Reorganization, 1970, 59 Geo.L.J. 477, 499 (1971). However, we believe that the interpretation of 16 D.C.Code § 1901 which places habeas corpus jurisdiction in the District Court with respect to all petitions filed by those individuals convicted by that court is consistent with these legislative goals.
In response to appellants’ contention that they should not be considered “Federal officers and employees” with respect to petitioner because they are engaged in the daily operation of a correctional facility committed to the control of local authorities, it should be emphasized that the mere fact that an individual is incarcerated in a prison committed to operation by local officials, and is challenging their actions in the daily administration of that prison, does not preclude the exercise of federal habeas jurisdiction by other federal District Courts. Under 18 U.S.C. § 4082(a) (1970), a “person convicted of an offense against the United States shall be committed * * * to the custody of the Attorney General of the United States, who shall designate the place of confinement where the sentence shall be served.” Such confinement may be in an institution operated by state officials, since 18 U.S.C. § 4082(b) (1970) specifies that the “Attorney General may designate as a place of confinement any available, suitable, and appropriate institution or facility, whether maintained by Congress contemplated, that such confinement might occur relatively frequently, for it specified in 18 U.S.C. § 4002 (1970) that “[f]or the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under authority of any enactment of Congress, the Director of the Bureau of Prisons may contract, for a period not exceeding three years, with the Federal Government or otherwise, * * * and may at any time transfer a person from one place of confinement to another.” (Emphasis added.) Indeed, the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care and proper employment of such persons.”
In any jurisdiction other than the District of Columbia, it would be beyond contention that an individual convicted and sentenced in a federal court, but ordered committed to such a state-operated facility by the Attorney General, could bring a habeas petition challenging certain actions by prison officials in the relevant federal District Court without first exhausting available state remedies. Under 28 U.S.C. § 2241 (1970), federal District Courts are empowered to issue writs of habeas corpus when, inter alia, a prisoner “is in custody under or by color of the authority of the United States”, id. § 2241(c)(1), or “is in custody * * * in pursuance of * * an order, process, judgment or decree of a court or judge of the United States,” id. § 2241(c)(2). And the exhaustion of state remedies requirement of 28 U.S.C. § 2254 (1970) would not apply to such a prisoner, since that provision only applies to “a person in custody pursuant to the judgment of a State court.” It should thus be clear that a prisoner, convicted by a federal court in another jurisdiction and ordered incarcerated in a state prison by the Attorney General, would have immediate access to a federal forum even for habeas petitions which properly concern the day-to-day administration of the institution by local officials. To deny such access to an individual convicted of a federal crime in a federal court in this jurisdiction, but incarcerated in a locally administered facility by designation of the Attorney General, merely because the basis of the petition was a prison disciplinary matter, would likely constitute a denial of equal protection.
Thus, in light of 16 D.C.Code § 1909, which specifies that the District habeas provisions are not to be construed to restrict the general federal habeas provisions and considering the principle that Congress is presumed to have enacted constitutionally permissible legislation, we would not construe Section 1901 to prevent an individual convicted of federal crimes in the District Court from petitioning that court to exercise a continuing supervisory role over his treatment during the period of his incarceration. Cf. United States v. Thompson, 147 U.S.App.D.C. 1, 4-12, 452 F.2d 1333, 1336 — 1344 (1971) (construction of post-conviction bail provisions of Court Reform Act). If that incarceration is in an institution under local control, “the D.C. jailer [is] serving as the Attorney General’s jailer” and is amenable to. suit in District Court as a “Federal officer or employee” within the comprehension of Section 1901. Thus the fact that the writ challenges the daily disciplinary actions of prison officials is not a factor compelling the statutory construction urged by appellants.
Of course the mere fact that the District Court may, in certain instances, entertain habeas petitions that affect the day-to-day administration of local correctional facilities does not necessarily mean that it may do so with respect to an individual convicted of local crimes by the District Court. Such an individual does not stand in exactly the same position as an individual convicted in District Court of a federal crime either before or after the Court Reform Act was passed, so the above equal protection argument would be in-apposite. Due to the unique status of the District of Columbia, the District Court before the Court Reform Act in effect functioned as both a local and federal court and, as already noted, the intent of the Act was to create a local judicial system that would place prosecution of crime in the District on the same footing as in other states. See, e. g., Palmore v. United States, supra, 411 U.S. at 392-393 n. 2, 407-409, 93 S.Ct. 1670. Appellants’ contention could thus be interpreted as an assertion that the Superior Court undertook all functions that a state court would perform, and that all actions which the District Court executed before the Court Reform Act but which would be taken by the Superior Court after that Act should be considered to' have been done by the Superior Court in the first instance. Appellee, who stands convicted of local crimes, would under this analysis be treated as an individual convicted in a state court who must first exhaust state remedies before filing a habeas petition in federal court.
We find this argument to be no more persuasive than the “local prison administration” argument in determining whether appellants were acting as “Federal officers and employees” with respect to appellee. Although local courts existed prior to the Court Reform Act, Congress had deliberately chosen to invest the federal courts with the responsibility of trying local crimes. This congressional distribution of judicial power was a legitimate exercise of Congress’ Article III power to establish inferior courts and its plenary Article I powers with respect to governing the District, cf., e. g., Palmore v. United States, supra, 411 U.S. at 397-403, 405-407, 93 S.Ct. 1670, 36 L.Ed.2d 342, and reflected the fact that “the District is truly sui generis in our governmental structure.” Cf. District of Columbia v. Carter, 409 U.S. 418, 432, 93 S.Ct. 602, 610, 34 L.Ed.2d 613 (1973). Appellant was tried, convicted, sentenced, and resentenced by the District Court in furtherance of this congressionally mandated responsibility. That federal court issued the order under which the Attorney General assumed custody of and responsibility for appellee, a responsibility which he subsequently delegated to appellants. In accepting custody of appellee, the Attorney General and appellants were acting as officers of the District Court, which could punish them for contempt for failure to properly fulfill their duties as custodians, and it would be strange indeed if that court could not effectuate its review of their actions via a writ of habeas corpus. Thus, had the Court Reform Act never been enacted, it would be clear that appellee could petition the District Court for the writ which he in fact sought, and that court would have been remiss in its judicial responsibilities if it did not ensure that the conditions of appellee’s incarceration met constitutionally acceptable standards. It is simply anomalous to suggest that a court, whose duty it is to ensure that the full vitality of the Great Writ is preserved inviolate, could be precluded from exercising continuing oversight of the manner in which individuals it commits to custody are treated, particularly when those executing the court’s commitment orders are considered officers of the court with respect to those prisoners. As Judge Gesell asserted, a court has an “inherent power” to act with respect to prisoners “committed under its aegis.”
At the time of his commitment appellee was thus unquestionably a federal prisoner who could look to the District Court for assurance that during his period of incarceration he would be subjected to no unconstitutional or illegal restraints on his liberty. Congress, which in enacting the Court Reform Act should have been aware of the plethora of cases holding that the keeper of a prisoner convicted and sentenced by a federal court is a federal officer with respect to that prisoner, nevertheless utilized the phrase “Federal officers and employees” to delimit the scope of District Court jurisdiction over District of Columbia habeas actions, and made no attempt to give that phrase a different content than that already developed through judicial precedent. Since there is no indication that Congress intended that Section 1901 would retroactively alter the “federal prisoner” status of individuals such as appellee, we believe Congress intended that the District Court continue in its supervisory role with respect to individuals that it sentenced, whether for
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
ALGONQUIN GAS TRANSMISSION COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Bay State Gas Company, et al., Intervenors.
No. 85-2021.
United States Court of Appeals, First Circuit.
Argued June 4, 1986.
Decided Jan. 13, 1987.
John T. Ketcham with whom Joseph O. Fryxell and McGee & Ketcham, P.C., Washington, D.C., were on brief, for petitioner.
John H. Conway with whom William H. Satterfield, General Counsel, Jerome M. Feit, Sol., and A. Karen Hill, Washington, D.C., were on brief, for respondent.
Before BOWNES, Circuit Judge, BROWN, Senior Circuit Judge, and BREYER, Circuit Judge.
Of the Fifth Circuit, sitting by designation.
JOHN R. BROWN, Senior Circuit Judge.
Petitioner Algonquin Gas Transmission Company (Algonquin) brings this petition for review, challenging an order by respondent Federal Energy Regulatory Commission. The Commission denied Algonquin’s request for a rate increase to its customers to recover $900,000 in expenses it incurred in an unsuccessful development of the Eascogas Liquified Natural Gas import project (Eascogas). See Algonquin Gas Transmission Co., 31 FERC II 61,221 (1985). The Commission properly applied its long-standing policy of denying recovery of costs for unsuccessful gas supply projects. Accordingly, we deny the petition for review.
Algeria and the Energy Crisis
Algonquin is a pipeline company that sells natural gas for resale in interstate commerce. Therefore, the rates Algonquin charges for those services are subject to the Commission’s jurisdiction under Sections 4 and 5 of the Natural Gas Act, 15 U.S.C. §§ 717c and 717d (1982). The question here is whether Algonquin may properly charge its customers under those provisions for a gas supply project that was never completed.
Eascogas was a corporation created and jointly owned by Algonquin and other companies. Eascogas had proposed to import Liquified Natural Gas (LNG) from Algeria and deliver it to its own facilities in Staten Island, New York, and Providence, Rhode Island. From there, it would be stored, regasified, and sold to United States customers for subsequent resale in New Jersey and New England. Of the proposed import volume, twenty-eight percent was to be sold to Algonquin’s customers.
The feasibility of the Eascogas project depended on the purchase of Algerian gas under low price contracts. These contracts, however, were contingent on the sponsors getting Commission approval by January 1, 1974, for at least the importation and sale aspects of the project. Absent that approval, the project could be terminated and the gas purchase contracts renegotiated at a much higher price. Based on its perception of a crisis in the world’s natural gas supply, the Commission granted to Eascogas (i) a limited authorization under Section 3 of the Natural Gas Act, 15 U.S.C. § 717b (1982), to import the LNG from Algeria, and (ii) a limited certificate of public convenience and necessity for the sale for resale of LNG. Eascogas LNG, Inc., et al, 50 FPC 2075, 2093-94 (1973). It conditioned final certification, however, on “further comprehensive and conclusive evaluations of all issues,” and made clear that it did not “endorse the economic feasibility of the entire Eascogas project.” 50 FPC at 2091.
The Eascogas project was actually a series of projects: buying, importing and selling LNG; providing transport ships to bring the gas to terminal and storage facilities; building those facilities; and providing all the attendant distribution lines. When completed, Eascogas was to have imported, over a 22-year period, some 4.76 billion MMBtu’s of Algerian LNG. See Eascogas LNG, Inc. et al., 50 FPC 1921 (1973).
Unfortunately, the Algerian Connection was not to be. The contract between Algonquin and Algeria included price escalation provisions pegged to world oil prices. When the price of oil later skyrocketed, the LNG project became economically impossible. In 1977, Algonquin terminated the project. No Eascogas LNG was ever imported or sold. The only “facility” actually built for the LNG import project was the excess capacity that was included in the LNG storage facilities built for Providence Gas.
Providence in Providence
As one small part of the massive import project, Algonquin negotiated an agreement with Providence Gas Company (Providence), a local distribution company in Rhode Island. Originally, Providence had planned to construct a large 348,000 barrel storage tank as part of its distribution system. Algonquin persuaded Providence to change its plans and allow Algonquin to build its own 600,000 barrel storage tank on the site. Algonquin’s primary aim was to acquire a deep-water LNG terminal site in Rhode Island for its baseload LNG import project. In return, Algonquin guaranteed Providence 348,000 barrels of storage capacity in the 600,000 barrel tank, reserved for and subject to Providence’s use. Algonquin agreed to build the facilities and provide the services for thirty years.
Algonquin completed the storage tank facility in late 1973. Although Providence began storing its gas there, there was no Eascogas LNG to store. Algonquin prudently found alternative users for the excess capacity. Algonquin sought and received a temporary Commission authorization, valid for one year, allowing it to use that excess capacity for jurisdictional, i.e., interstate, storage services for other companies and to collect rates for such use. Algonquin LNG, Inc. & Algonquin Gas Transmission Co., 52 FPC 731 (1974). This was renewed on a yearly basis until 1982, when Algonquin received a ten-year authorization to use the excess capacity for jurisdictional storage services, Algonquin LNG, Inc. & Algonquin Gas Transmission Co., 19 FERC ¶ 61,265 (1982). It is this single storage operation that Algonquin claims has magically transformed the aborted Eascogas import project into a success, and thereby made Algonquin eligible for the recovery of its costs.
Algonquin Goes to Washington
In January 1980, Algonquin filed with the Commission, under Section 4 of the NGA, a request for $17.1 million per year rate increase for service to customers in New England, New York and New Jersey. Algonquin sought to recover approximately $1.5 million in Eascogas costs as “normal regulatory expenses” through an amortization allowance in its cost of service rate increase. Subsequently, this amount has been scaled down to $900,000. Algonquin gave only a general description of the expenses; it did not differentiate as to costs for the excess capacity for the Providence tank. Significantly, facility construction costs for the Providence storage tank were not included.
In December 1981, the AU issued her decision on Algonquin’s rate case. 17 FERC 1163,063 (1981). Relying on the prevailing Commission policy, the AU disallowed Algonquin’s Eascogas claim on the grounds that (i) the costs incurred for an unsuccessful gas supply project could not be recovered from ratepayers, but must instead be borne by stockholders, and (ii) Algonquin had not, in any event, borne its burden of showing that it had spent the money on otherwise lawful expenses. 17 FERC at 65,300.
In early 1983, the Commission announced its review of the AU’s decisions. 22 FERC H 61,279 (1983). Although it decided the other issues, it expressly postponed consideration of the Eascogas cost recovery question because it was at that time reviewing the same policy of cost recovery in the Natural Gas Pipeline Company case. Accordingly, it reserved judgment on the recovery issue. 22 FERC at 61,502.
The Natural decision, issued in May 1984, reaffirmed existing policy: the company could not recover costs for gas supply projects that were abandoned before completion.
Algonquin, however, ignored the plain meaning of Natural. In July 1984, Algonquin requested a remand to the AU. Seizing on what it contended were “new” standards announced in Natural, Algonquin demanded additional evidentiary proceedings to demonstrate how Eascogas met the new test.
In May 1985, the Commission denied Algonquin’s motion for remand of the reserved cost recovery issue and instead affirmed the AU’s initial decision denying those costs. Algonquin Gas Transmission Co., 31 FERC ¶ 61,221 (1985). The Commission found that Algonquin’s import project did not progress sufficiently beyond the stage of preliminary survey to warrant application of any standard different from the long-established policy reiterated and applied in Natural. In addition, the Commission found that the status of the Providence storage facility was distinct from that of the Eascogas import project. Accordingly, Algonquin could not “bootstrap” the unsuccessful import project onto the much smaller successful storage facility to cast the entire effort as a successful one.
On Algonquin’s petition for rehearing, the Commission found no dispute of the material facts and denied the request. Algonquin Gas Transmission Co., 33 FERC 1f 61,181 (1985). Thus, it comes to us.
Discussion: Au Natural
Algonquin appeals one issue in this case, and its name is Natural. In essence, Algonquin views the Natural decision as the evil spectre that has done in its case. It attacks Natural on three primary fronts. First, it contends that the Natural “test”— promulgated after Algonquin filed its case — is unacceptable revisionism of prior Commission precedent. For the Commission to apply the Natural test to Algonquin's case now, after the record has closed, violates due process. Second, if Natural can apply here, then Algonquin should certainly have the chance to show how, through its Providence storage tank, it now meets the new prudence test. And third, Algonquin contends that Natural’s disingenuous explanation of the disparate treatment of cost recovery for the electric and natural gas industries is hypocritical and unfair. Unfortunately for Algonquin, Natural is neither ground-breaking nor earth shaking. It is, however, an elegant restatement of the Commission’s traditional policy regarding cost recovery for abandoned natural gas projects.
The rationale underlying the Natural decision can be neatly stated. As the District of Columbia Circuit aptly observed:
The Natural Gas Act simply does not guarantee the shareholders of even a prudently managed utility that ratepayers can always be stuck with the bill for supply projects that turn out to be total failures, however praiseworthy the utility’s motives for undertaking those projects may have been____ In this case, the Commission in effect decided that the public interest in seeing that ratepayers do not pay for services not received was dispositive.
Natural, 765 F.2d at 1163-64. We find this reasoning persuasive and applicable to Algonquin’s case.
Algonquin’s Inartful Dodging
Algonquin first attacks Natural as being revisionist. It contends the Commission has ignored or recast the inconsistencies in the Commission’s prior treatment of the cost recovery issue.
It is true that the Commission, in rare cases, has given advanced guarantees to a gas pipeline, assuring it that it may recover some of its project costs even if the project later proves unsuccessful. See, e.g., Trailblazer Pipeline Co., 18 FERC ¶ 61,099 at 61,500-04 (1982); Ozark Gas Transmission System, 16 FERC H 61,099 at 61,-194-96 (1981), reh’g denied, 17 FERC ¶ 61,024 (1981). These cases, however, are inapposite to Algonquin’s situation. The Commission has granted prior guarantees only when a party has raised public policy considerations and then only when the Commission had considered beforehand whether the project would be in the public interest.
Moreover, Algonquin relies on language from these two cases that questions whether the traditional policy — one of non-recovery — might be subject for a change in the future. Not surprisingly, Algonquin neglects to mention that these decisions were issued while the Commission was reexamining the very same policy of non-recovery which was reaffirmed by the later Natural decision. In context, both Ozark and Trailblazer recognize that the usual policy was one of non-recovery.
Algonquin has relied on these cases for its claims that, before Natural, the Commission’s policy was different. Such reasoning fails for historical inaccuracy. These two cases were decided in the very different context of providing advanced guarantees that ratepayers would bear some risk of project failure. On appeal, Algonquin cannot complain that it was prejudiced by the Commission’s individualized treatment in Ozark or Trailblazer. After all, Algonquin never even received final certification or unconditional approval, much less an advanced guarantee.
Algonquin’s contention that Natural announced a new test is equally unavailing. The Commission explicitly rejected the notion that it was adopting or implementing a new standard of cost recovery for early abandoned projects. 27 FERC at 61,380. Algonquin nevertheless maintains that the following language announces the elements of a new test: “[Whether] the projects were found to be speculative and uncertain, [and] remote in time____”27 FERC at 61,-379. This “test” is nothing of the sort. It is merely one description — an alternative characterization — of the historical traits of projects in which cost recovery was disallowed. Indeed, the remainder of that same sentence, which merely continues this description, concludes, “[and were] without benefit to ratepayers.” Id. The “new” test of “speculativeness” and “remoteness” is merely an amplification of the same old policy. The test remains that a policy must, in the eyes of the Commission, be “of benefit to ratepayers.” The more speculative or remote a project, the less likely it will, in the Commission’s view, benefit ratepayers. Algonquin’s analysis is rejected.
Although the test for preliminarily abandoned projects remains unchanged, Natural did prospectively announce a prudence standard to be applied to projects that progressed beyond the preliminary stage before abandonment. The Commission stated, “[W]e do not foreclose reconsideration of the abandoned projects issue in future cases where projects have been carried beyond the stage of preliminary survey and investigation and where the pipeline’s investments are proportionately greater.” 27 FERC at 61,381 (emphasis added). The crucial criteria for this prospective “prudence standard” center on more advanced degrees of investigation and investment. Thus, projects that terminate at a “preliminary” stage will not likely merit Commission eligibility for consideration under the new prudence test. For early abandoned operations, therefore, Natural changes nothing: if the ratepayers never benefited, the costs cannot be recovered.
The Little Tank That Could
The engine in Algonquin’s drive to distinguish its case from Natural has been the storage tank in Providence. Algonquin so fervently urges the storage tank aspect of the Eascogas project for a very good reason: if it can “bootstrap” the abandoned Eascogas project onto the success of the storage facility, it may no longer be a “preliminary” project, and may be eligible for analysis under the more generous test of the recently expressed prudence standard.
Algonquin’s argument runs along this line: The storage tank is successful. (It is commercially profitable, and even has a ten-year jurisdictional certificate from the Commission.) If the storage tank’s success can be attributed to the entire Eascogas project (for which the tank was originally built), then Eascogas can be treated as having progressed beyond the preliminary stage. If Eascogas went beyond the preliminary stage, it (i) can be distinguished from the strictures of Natural, and (ii) more importantly, can claim the benefit of the “prudence test” announced prospectively in Natural. The hoped-for-conclusion to this, of course, is that Algonquin — which has no chance to recover under the Natural preliminary abandonment test — has some chance to recover under a prudence test.
However flawless may the logic be, the second premise, alas, is faulty. The Commission was entitled to determine that the storage tank’s success cannot be attributed to the entire Eascogas project. In the words of Commissioner Plumb, The Commission stated,
The record demonstrates that Algonquin participated in what are, in effect, two distinct but related LNG projects, i.e., an LNG storage project and an LNG import project. In constructing the facilities needed to serve Providence Gas, Algonquin included excess tank capacity for eventual use in the LNG import project. But independent of the status of the LNG import project, Algonquin made a 30-year commitment to provide delivery and storage capacity for Providence Gas’ own LNG. Algonquin would have continued to provide capacity for Providence Gas even if the LNG import project had been constructed and put into operation. Further, termination of the import project did not affect this service, which Algonquin has provided to Providence Gas since May 1974.
Under these circumstances, the existing LNG storage facilities used to serve Providence Gas are distinct from the Eascogas project. The only facility actually constructed for the Eascogas project was the excess capacity included in the Rhode Island site for future use for Algonquin’s own imported LNG.
31 FERC at 61,443. In other words, the bootstrap does not lift.
Further, the Commission found that most of Algonquin’s expenditures on the Eascogas project were for preliminary types of activities such as preliminary studies, permits, applications, and the like.
Factoring together these aspects, the Commission, concluding that the Eascogas project was terminated at a preliminary stage, found that Natural was controlling and the prudence standard unavailable. The Commission’s finding of two independent projects is supported by voluminous, substantial evidence. The level and type of activity involved in Eascogas by Algonquin has been, from all reasonable perspectives, purely preliminary. The fact that one element — 10% of the total estimated storage capacity — was taken to completion, and is now successfully operating in a manner utterly unrelated to Eascogas, is not decisive. Algonquin, cannot cantilever this “benefit to ratepayers” of the Providence storage tank onto all of the Eascogas project.
Thus, as we review this proposed rate increase by Algonquin, we are mindful that, “the [circuit] court’s responsibility is not to supplant the Commission’s balance of [risk and benefit factors involved in rate setting] with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors.” Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S.Ct. 1344, 1373, 20 L.Ed.2d 312, 350 (1968). We agree with the Commission’s characterization of the Eascogas project as preliminary, and concur in its application of the Natural “of benefit to ratepayers” test.
Apples, Oranges and FERC
Algonquin’s third argument is that because the Commission permits electric utilities to recover costs under the Federal Power Act for cancelled electric power projects, the Commission must therefore also permit such cost recovery for failed/discontinued projects under the Natural Gas Act. This contention, that two different industries regulated under two different statutes must be treated exactly alike, is utterly unpersuasive.
The Commission must preapprove jurisdictional (interstate) pipeline projects under § 7(c) of the NGA. Accordingly, it has the opportunity — if it chooses — to divide cancellation risks between project sponsors and ratepayers beforehand. See, e.g., Trailblazer Pipeline Co., 18 FERC ¶ 61,099 at 61,500-04 (1982). Under the FPA, however, the Commission has no analogous pri- or approval authority. Thus an electric utility cannot obtain an advance determination, as a pipeline can, of whether the risk of its failure can be shared with ratepayers. Given this lack of preliminary review power under the FPA, it is quite reasonable that the Commission has adopted separate policies of cost recovery for electric and natural gas projects.
The disparate approaches to regulation are well-established. As the Commission declared in Natural,
While Natural is correct in arguing that there is a lack of complete consistency between the Commission’s amortization policies under the Natural Gas and Federal Power Acts, that fact is not decisive. To approve amortization here would result in a direct transfer of risk and related cost from Natural’s shareholders to its ratepayers____ The Commission’s policy applicable to failed gas supply projects is of long standing and has been consistently applied in numerous cases. The Commission’s policy in this area is therefore well established. We have reviewed that policy in the course of deciding this case and have concluded that no charges are warranted.
Natural, 27 FERC 1161,201 at 61,380. We cannot say it any better.
Just One More Chance
Following the announcement of the Natural opinion, Algonquin has steadfastly maintained that it is entitled to a new evidentiary hearing so that it may supplement the record by new facts or data that will show that Algonquin’s Eascogas project has met the asserted new prudence standard. Algonquin’s arguments are unpersuasive.
Algonquin couched its arguments in terms of “unfairness” or failure of due process. These claims are unwarranted. First, Algonquin was clearly heard by the Commission. The Commission, in its order denying the cost recovery, fully responded to Algonquin’s claims of the interrelationship of the import and storage projects and the relation of Algonquin’s case to the Natural decision, and did so again on rehearing. That is sufficient. See, e.g., Pennsylvania Gas & Water Co. v. FPC, 463 F.2d 1242, 1251 (D.C.Cir.1972) (no hearing required when no material facts in dispute).
Algonquin also complains about the Commission’s use of data from its earlier certification proceedings involving Eascogas. It contends that such facts are stale or have been taken under questionably broad “judicial notice.” For example, Algonquin claims that the Commission relied on inaccurate figures in finding the storage tank to be independent from the import project. While it may be true that Algonquin spent more money on the Providence gas storage project than originally planned, this, as the Commission found, cannot change the result that the Providence gas storage tank was a very small part of the massive Eascogas project. Thus, determining the precise amount that Algonquin actually spent in constructing the tank was not significant to the Commission’s conclusion. As discussed above, the success of the storage tank cannot, retroactively or otherwise, transform the status of the Eascogas import project.
End of the (Pipeline
We end as we began, approving the Commission’s decision:
Algonquin’s Eascogas project falls squarely within the Commission’s longstanding precedent concerning disallowance of the costs of gas supply projects terminated at a preliminary stage. Our primary concern is the proper allocation of the risk of loss of such projects between the ratepayers and the shareholders. The Eascogas project was speculative and the potential benefit to ratepayers from LNG importation was remote, uncertain, and in the end, non-existent. Except for the costs associated with the converted storage facility, ratepayers should not bear, consistent with Natural, the costs of the Eascogas project. Because the costs of the converted facility are recoverable through Algonquin’s storage rate, they cannot be amortized in this proceeding.
31 FERC at 61,445.
Accordingly, we deny Algonquin’s petition for review.
DENIED.
. In reviewing a pipeline’s application for a rate increase, the Commission must determine what the pipeline’s appropriate cost of service should be, assuming prudent management, for the rate must be sufficient to recover that cost. The cost of service, in turn, is the sum of the utility's operating expenses, depreciation expense, taxes and a reasonable return on the net value of the property devoted to public service. See generally, Garfield & Lovejoy, Public Utility Economics 56 (1964).
. "MMBtu” is an abbreviation for one million Btu, and equals approximately one thousand cubic feet of gas.
. Indeed, Algonquin has estimated that $47.6 million additional investment would have been required to bring the project up to speed for the original baseload LNG import project. Algonquin Application for Certificate of Public Convenience and Necessity, Exhibit K (filed Nov. 22, 1972, Dkt. No. CP73-139L
. Algonquin did not seek rate base treatment of or a return on the expenses. See supra note 1.
. There was testimony at the hearing on the rate increase that these costs included "legal fees, consultant fees, Algonquin's own costs, the airplane rides to Washington, hotel bills,” but Algonquin did not categorize or classify the expenditures in its presentation to the Commissioner: "It is not clear on this record what costs are included in the $1.5 million total, or what dockets were involved.” Algonquin Gas Transmission Co., 17 FERC ¶ 63,063 at 65,298 (1981).
. See Natural Gas Pipeline Co., 27 FERC ¶ 61,201 (1984), reh’g denied, 28 FERC ¶ 61,020 (1984), aff'd, Natural Gas Pipeline Co. v. FERC, 765 F.2d 1155 (D.C.Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 794, 88 L.Ed.2d 771 (1986).
. The Commission formulated the test as follows:
A pipeline claiming amortization of costs based on a standard of prudence should be prepared to demonstrate that it (rather than the corporate parent or corporate affiliates) was (i) the source of funds expended, and (ii) that the project, if successful, would have benefited its customers and consumers. The pipeline should also be prepared to present detailed evidence concerning (iii) the degree of planning which went into the project as well as any assumptions which were made prior to commitment of funds. In addition, the pipeline should present evidence concerning (iv) the factors which led to abandonment or failure of any project and (v) actions taken to avoid or mitigate resulting losses. In summary, the record must contain evidence which would be sufficient to enable the Commission to determine the reasonableness and prudence of the projects and the pipeline’s actions concerning them.
27 FERC at 61,381.
. See supra note 7.
. Storage itself, recall, was but a small element in the grand scheme of import, processing and distribution. See text accompanying supra note 2.
. The Natural decision is not unique. The Commission treats the two industries differently in other rate-setting matters as well. See, e.g., Cities of Aitken, et al. v. FERC, 704 F.2d 1254, 1257 n. 4 (D.C.Cir.1982); Arkansas Louisiana Gas Co. v. FERC, 654 F.2d 435, 439 n. 8 (5th Cir.1981).
. Stated more graphically, the total construction cost of the one completed Providence tank is estimated to be $17,600,000. Algonquin has disputed this figure, saying that it eventually was "higher.” Regardless of how much "higher” it may be, the Eascogas gas project would have required an estimated (by Algonquin) $47.6 million just to bring the Providence facility up to speed as a baseload LNG import facility. The constructed tank was to be one of three. And the Providence facility was only to store 35% of the imported LNG. Sixty-five percent of the project’s gas was to be stored at the terminal facilities in Staten Island, New York. These facilities, of course, were never constructed. Thus, this lone, bare storage tank, outfitted with inadequate or non-existent dock facilities, unloading lines, send-out facilities, and transmission lines, cannot by any stretch of the imagination be regarded as having progressed "beyond a preliminary stage.” See text accompanying supra note 2.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_civproc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
UNITED STATES v. MINNEC.
No. 6697.
Circuit Court of Appeals, Seventh Circuit.
April 27, 1939.
Rehearing Denied June 6, 1939.
Arthur H. Jones, of Chicago, Ill., for appellant.
William J. Campbell, U. S. Atty., Thomas B. Hart, and Roy D. Keehn, Jr., Asst. U. S. Atty., all of Chicago, Ill., for the United States.
Before EVANS, SPARKS, and MAJOR, Circuit Judges.
MAJOR, Circuit Judge.
Appellant was charged in a sixteen-count indictment with use of the United States mails in furtherance of a scheme to defraud by means of false pretenses, representations and promises in violation of Section 338, Title 18, U.S.C., 18 U.S.C.A. § 338. He was tried by a jury, found guilty upon all counts and from the judgment pronounced thereon this appeal is taken.
While numerous errors are assigned, the ones principally relied upon, and in fact, the only ones argued and discussed by appellant are:
(1) The trial court erred in overruling the appellant’s general and special demurrer to the indictment and each count thereof.
(2) That the court erred in overruling the appellant’s motion asking the court to instruct the jury to return a verdict of not guilty at the close of the appellee’s- evidence, and also at the close of all of the evidence, and in overruling the appellant’s motion for a new trial.
(3) That the court erred in admitting prejudicial and incompetent evidence.
The indictment, as is usual in such cases, describes at great length, the scheme and artifice devised. In substance, it is alleged that the appellant devised a scheme to defraud and to obtain money by means of false and fraudulent pretenses, representations and promises from certain named persons, as well as those unnamed, residing in divers states, by the incorporation of the Cosmopolitan Mutual Benefit Association and the Lincoln National Aid Association, the avowed object of which was for charitable and beneficial purposes; to assist and provide for the sick, needy and disabled members and for the wants of the widows, orphans and dependents; that Certificates were issued to members, conferring benefits, less than promised, by literature and statements made by the appellant and his agents; the manner of soliciting members and of operating the business, the forms of the Certificates and the provisions therein are set forth in detail, and the indictment particularly specified wherein such provisions are misleading and fraudulent; that a large portion of the contributions received from the members was appropriated by the appellant to his own use; that false and deceptive information was conveyed to the public, and particularly to prospective members by means of the circulars, pamphlets, catalogs, folders and letters by which persons were induced to become members; that no medical examination was required and that persons were solicited, who, by reason of advanced age and physical infirmities would be likely to die from certain diseases which precluded them from receiving anything more than nominal benefits; that the appellant, by reason of proxies obtained from members, was in the absolute control and management of the associations and used his power and authority in compelling members and their beneficiaries to settle claims against the associations without regard to the legality of such claims under the terms and conditions of the Certificates, thus enabling him to appropriate to his own use a large portion of the assessments received from members. The alleged fraudulent provisions of the Certificates are set forth in detail, as well as the fraudulent claims and statements made in pamphlets ánd literature prepared and distributed by the appellant as a means of inducing persons to become members and pay assessments. In brief, it is charged that the associations were operated for the benefit of the appellant rather than for the benefit of the members of the associations, and the details in support of that allegation are set forth. Following the description of the scheme and artifice to defraud, each count of the indictment contains a verbatim description or copy of a document or instrument which it is charged the appellant placed, or caused to be placed in the United States mail as a means of executing the alleged scheme and artifice.
That the mails were used in the manner charged is not in dispute. The attack on the indictment is directed at the alleged scheme and the criticism in this respect has to do with a number of allegations, which, it is argued, are indefinite and merely represent the conclusion of the pleader. Authorities are cited to the effect that every necessary allegation in an indictment must be directly and affirmatively alleged, and that charges by implication, intendment or conclusion are insufficient. No doubt, the rule in this respect is well established, but we think it has no application in the instant situation. True, as pointed out by the appellant, there are numerous statements in the indictment, which, if considered by themselves, might properly be termed as conclusions and in some respects, uncertain and indefinite. It can not be held, however, that an indictment which goes into great detail in describing the scheme or artifice to defraud, is bad merely because it contains some statements which may properly be termed as conclusions. In the instant case, such statements may be ignored and yet we find direct and positive averments, which, in our judgment are sufficient to charge a violation of the statute. In fact, it appears the various elements of the scheme are charged with greater prolixity than the circumstances require. While the scheme to defraud is a necessary element of the offense charged, yet the gist of the offense is the use of the mails, and it is only essential that the scheme be charged with such particularity as will enable the accused to know what he may be expected to meet on trial. That the appellant was so informed, there can be no doubt.
We now give consideration to the alleged error of the trial court in its refusal to direct a verdict for the appellant. With the voluminous record before us, containing several hundred exhibits it is somewhat difficult to discuss the evidence in an opinion of reasonable length. In the beginning, we think it is not inappropriate to call attention to the fact that this court recently in United States v. Littlejohn, 7 Cir., 96 F.2d 368, considered and decided a similar case where the facts were almost identical with those of the instant case. The facts, as set forth in our opinion in that case, insofar as they relate to the scheme charged, could very well be incorporated here without doing injustice to either side. Counsel for the appellant, in the oral argument before this court, when inquiry was made as to what distinction could be made between the facts in the two cases, pointed out only one minor distinction, which was of no consequence.
We shall, briefly, we hope, considering the circumstances, relate what we regard as the more material facts and circumstances. Prior to the organization of the associations in question, appellant had been active in the operation of similar associations, among .them being the Bankers Insurance Corporation, The American Peoples League and the American Peoples Mutual Benefit Association, all of which at or. prior to the time of the organization of the associations in question, ceased to do business. On May 29, 1933, appellant and others obtained a charter for the Cosmopolitan under the laws of the State of Indiana, authorizing a society not for pecuniary profit. On February 28, 1934, the appellant obtained a charter under the laws of the State of Delaware for the Lincoln National Aid Association, the objects of which were the same .as those of the Cosmopolitan. .The two associations proceeded thereafter to solicit members and to issue Certificates. Appellant was President of both and acted in that capacity throughout the entire period involved in this case. No person other than he had any voice in the organization, operation, control or management of such .associations. His situation was thus by reason of the fact that when a member .joined the association he was required, by proxy, to authorize the appellant to act for .such member in all matters pertaining to the associations.
Solicitation for memberships, as well as .for representatives to solicit the same, was carried on by means of advertisements in various periodicals and magazines. Salesmen’s kits were mailed to those who evidenced any interest. The advertisements, salesmen’s kits, periodicals, and in fact, all literature mailed 'in connection with the .operation of these associations, appealed to the representatives and to those to whom .'literature was mailed to become members, and solicited all members to become representatives for the associations. No discrimination was used in the selection of representatives. They were authorized to collect $5 initiation fee, and $1 registration fee from each applicant, to be .retained by them'as their commission, and to solicit the application of eligible persons from one to eighty years of age.
The business of both associations was actually transacted in an office in Berwyn, Illinois, with the same personnel and officers. An office of nominal character was maintained in Hammond, Indiana. Appellant was the only salaried officer.
We think it necessary to refer to some of the statements found in the numerous exhibits which the Government relies upon in part as disclosing the fraudulent means employed in inducing persons to become members of the associations and as a part of the scheme with which appellant was charged. In a pamphlet entitled “True Riches,” copyrighted by the appellant, the associations are described as “rendering humanitarian service.” The maximum benefits provided by the Certificate are set forth without any reference to the exceptions and limitations contained in the Certificate. Referring to the result which follows from illness or death of the head of a family, it is stated:
“The perfect tribute any man can give to his family is a lasting guarantee that such tragedy can .never be theirs. It is all so easy, if you only. will. At a cost of only $1 per month, less than the price of one moving picture show per week, you can have the protecting arm of the National Certificate issued by this Association spread over yourself and your family. * * *
“If death .should result from your illness, your family will receive up to $1000 cash — and all for this small $1 per month payment. At such a low cost, you cannot afford to be without National Certificate Protection. Think of it! You could pay on a ‘National Certificate’ over 80 years before the amount put in would equal the benefits derived. Prepare today to face anything the future can offer, unafraid and protected.”
Again:
“The ‘National Certificates’ issued by this Association are simple, plainly worded promises to pay DEFINITE amounts in case of sickness, disability, or death. Just plain, everyday English that you' can understand without the aid of a Philadelphia lawyer. You are the sole judge — no one will call. You study the ‘National Certificate’ in the quiet of your home without any obligation on your part. * * *
“After you have your Certificate in your possession, you can look forward to the time when you no longer are able to carry on your work on account of old age; and then you can retire and live in comfort, while others not so fortunate to make application now are unable to make a living. Just think how wonderful it is to be able to play with your grandchildren on the lawn of your son or daughter, and be able to feel that you are not a burden to them, because today you have signed this statement, how terrible it is for old men and women, who, unable to support themselves, are forced to accept any kind of a nasty job, because they must take anything they can get; for the average employer will not give good jobs to old men and old women. This is not right, but nevertheless is the truth. These people should have protected themselves when they were young.”
In a letter accompanying “True Riches,” is found this statement: “The ‘National Certificate’ is the most complete, all-coverage benefit certificate ever issued. Study the large benefits this Association offers for the small monthly payment of $1.00. Particularly analyze the Maximum Benefits offered by the ‘National Certificate.’ Note that it provides up to $3000 for Travel Accidental Death. Note that it provides up to $2000 for every known Accident. Note that it provides up to $1000 for Natural Death or old age. Note that it provides up to $30.00 weekly for Travel Accidental Disability. Note that it provides up to $20.00 weekly for Accident Disability and up to $10.00 weekly for Sickness.”
In another pamphlet entitled “Mutual Crusaders’ Messenger,” also copyrighted by appellant, we find this statement: “Again, let me call your attention to the fact that you do not have to get sick or die to receive the Benefits of this Association, because when you have an old man on your hands, which is yourself, you should receive benefits that should take care of yourself the rest of your life. So, you see, when you join this Association and you will receive its ‘National Certificate,’ you virtually have made provision to take care of yourself and your loved ones in the event of your sickness, disability, old age, and death. * * * * So you see, Mr. -, the necessity of making application now; because as long as we live, we need food, we need shelter, and we need clothes; and as we get older, disease appears, and we require medical attention. This Association furnishes these Benefits for you, if you will fill this application now, and pay the small monthly payment of one dollar per month, to keep your Membership in good standing.”
In another exhibit we find: “The ‘National Certificate’ is issued by this Association which is Chartered and. Operates 'not for profit under State Laws. It operates under the Mutual Benefit plan, which has over 760 years of successful experience, giving safe sound, and economical protection to its, members at cost. The ‘National Certificate’ will protect you.”
In a letter to members it is said: “This Association issues the very best of protective mutual benefit certificates for the small sum of $1.00 per month.”
In a form letter which accompanied Certificates to new members, it is stated: “Always maintain your ‘National Certificate’ in force. Tell your relatives, friends, and neighbors, how easy it is for them to receive the protection of the ‘National Certificate.’ Thus you will help them to secure for themselves the best protection available for only one dollar ($1.00) per month.” Also, this statement appears: “Today you have no excuse to do without life protection any longer, when, at a cost of less than 3%^ a day, Cosmopolitan Mutual will protect you.” In this letter the protection offered is described as an adequate and “amazing value in life protection.”
Again, we find a Certificate described— “As the Liberty Policy is a masterpiece of protection it is to your interest and the interest of your loved ones to maintain this Policy in force at all times.”
In another pamphlet we find: “Thousands of members everywhere welcome the ‘National Certificate’; hundreds of letters have reached us praising this all-coverage contract. Lawyers, Doctors, Insurance Men, Priests, Ministers, Pastors, Mayors, Sheriffs, Policemen, Carpenters, Mason, Miners, etc., etc., all welcome the ‘National Certificate.’ ”
These statements are merely typical of the many alluring representations made by the appellant in every conceivable form of advertising for the purpose, of course, of inducing persons to become members.
A person desiring to become a member was required to sign an application and to answer certain questions, the most important of which was “Are you in good and vigorous health?” In numerous instances, as disclosed, there was a failure on the part of the applicant to give any answer to this question and in numerous other instances the answer was such as to disclose that no claim to good health was made on the part of the applicant. Little, if any, attention, however, was given to' the answer to this question and regardless of the manner in which it was answered, the applicant invariably was accepted as a member. The failure to answer, or an answer disclosing the applicant was not in good health, was, however, frequently used by the appellant as a means of evading liability. A four-page Certificate, attractive in appearance, was issued to the member. On the first page appears the picture of Abraham Lincoln. (This refers to the Lincoln National Association, but the terms of the Certificate were similar in' each instance.)
In the upper right-hand corner in bold type it is stated:
“Maximum Benefits
$3000.001 $2000.001 Death Benefits $1000.00j
$30.001 $20.001 Weekly Benefits.” $io.ooj
Commencing about the middle of the face of the policy, appears the following (Size and type of print, same as here):
It appears from the evidence that 97% of all people who die in the age group, 40 to 80, die from one of the diseases or causes mentioned in this latter provision of the Certificate, and in the age group, 1 to 80 years, 90%.
On page 2 are found further limitations upon the benefits provided as shown in the schedule of benefits on the face of the Certificate. On page 3, in extremely fine print are found the conditions and by-laws of the Association. They consist of 40 articles or paragraphs. Time and space forbid more than brief reference to the same. Article 5 gives the President the control and management of the business; Article 8 provides that the President may receive 100% of the Expense Fund, 100% of all membership fees, 100% of all registration fees to use for expenses and that the remainder shall become his compensation; Article 9 makes the by-laws a part of the Certificate, and Article 23 provides for a Guarantee Benefit Fund out of which to pay benefits and an Expense Fund, such funds to be created _ from payments received from members. The moneys thus received are to be allocated as follows: First year, 10% to Guarantee Fund and 90% to Expense Fund; Second year, 20% to Guarantee Fund and 80% to the Expense Fund; Third and subsequent years, 30% to the former and 70% to the latter. This article also provides that in the event in any month that contributions are less than liabilities on account of claims payable, then the member shall receive proportionately less than he would be otherwise entitled. It is also provided that if the total net proceeds of one monthly contribution amount to more than is necessary to pay the. claims and obligations, then the balance shall be deposited to the Expense Fund.
It was disclosed that the receipts of the Cosmopolitan for the period from August 1, 1933 to August 31, 1937, were $57,143. 61; for the Lincoln for the same period, $18,153.50, or total receipts by the two Associations of $75,297.11. During the same period, the disbursements amounted to $56,335.67, of which the sum of $4112.45 was paid out by both Associations on all claims, both for death and disability. There was a balance in the bank as of August 31, 1937, of $3,033.62, which leaves an amount of something less than $16,000, the disposition of which is not explained by the record.
One, Edward Fackler, testified on behalf of the Government, as an expert actuary, regarding the Certificates issued by each of the Associations. His testimony was to the effect that the assessments provided to pay for $1000 worth of insurance for a person aged 18, for natural death alone would be 59% deficient; at age 35 the assessments would be 78% deficient and at age 54 they would be 90% deficient. The deficiency of assessments for other classes and ages, according to his testimony, would vary from 46 to 89%, and he gave as his opinion that neither Association could operate successfully.
We have no hesitancy in concluding that the verdict of the jury and judgment of the court were justified — in fact, it is difficult to ascertain how a different conclusion could have been reached. It would serve no useful purpose for us to indulge further in a recitation of the many facts appearing in the record, or a reiteration of those to which we -have already referred, in support of our conclusion. Appellant argues at length in an effort at demonstration and that the certificate constituted a contract between the appellant and the member, and that it was the intention of the appellant to provide for the latter or his beneficiary, benefits according to the terms thereof. It is further argued that the appellant was in a position to pay such benefits and as a matter of fact, made such payments in conformity with the terms of the Certificate, and, therefore, no fraud was involved. After reading the many complicated restrictions and limitations provided in the Certificate, as well as the numerous loopholes which are provided by which the Associations might and did escape liability, we are inclined to think that appellant’s argument in this respect is tenable. In other words, if we are able to understand all the terms and conditions imposed by the Certificate, which we find difficult to do, we think it may be said that the appellant possessed the ability to pay such benefits as promised. The reason we are able to countenance such an argument is that a study of the Certificate convinces us that he came as near to promising nothing as it would be possible for a man to do, skilled in this line of work, as appellant was. A study of the Certificate itself is convincing that it was designed as an entrapment for the ignorant and unwary and operated successfully as a snare and a delusion.
We have heretofore set forth the schedule of maximum benefits as appears on the face of the Certificate, and also the very small italicized print which follows this schedule, and which limits any benefits provided to such an extent that they become practically, nil. It is impossible, with the means at our disposal, to portray the manner in which this particular limitation is embedded in the Certificate. Not only is the type so small as to make it difficult to read with the naked eye, but the reading of it is made more difficult by a blending of mottled colors constituting the background on which these restrictions are printed. The situation thus created must have been for the purpose of keeping a member “in the dark” as to the .restrictions contained therein. Benefits by this clause were reduced to 2% of the maximum benefits in case the member died during the first 90 days the Certificate was in force of any disease or ailment mentioned therein and which, according to medical testimony is the cause of death in 97% of the people. The benefits are increased 2% each 90 days thereafter until the maximum benefit is reached. To make certain, however, that no member escape the devastating effect of this limitation, it was further provided that if any person die with any chronic or undetermined disease or ailment, that the benefit should likewise be 2% of the stated maximum benefit. Further conditions and limitations found on the inside pages of the Certificate, as well as the constitution and by-laws, are equally confusing and deceptive. Instead of containing “plain, everyday F.nglish that you can understand without the aid of a Philadelphia lawyer,” the language employed would tax the ingenuity of layman and lawyer alike.
While we think, as stated, that fraud is apparent from the Certificate itself, there can be no doubt of the fraudulent scheme when the Certificate is taken into consideration with the many false, enticing and alluring statements and promises which were made by the appellant for the purpose of inducing persons to become members. We have heretofore made reference to some of such statements and we need not repeat. It is sufficient to state that the evidence in this respect establishes fraud of a vicious character, the consequences of which resulted in disappointment, hardships and financial loss to those who relied upon and gave credence thereto. While we .recognize. that some latitude is allowable to a person engaged in business in extolling the virtues of that which he offers to the public (sometimes referred to as “puffing”) yet there must be a limit, which in this case was reached far short of the false, misleading and fake promises made by the appellant, or at any rate made under his direction and with his approval as a means of inducing persons to become members of these Associations and thereby obtain their money.
Complaint is also made concerning the admission of evidence. Our attention is called particularly to the testimony of the witness, Fackler, who qualified as an expert actuary and testified as such. The witness was permitted to read or describe various provisions of the Certificate and to express an opinion as to their effect and as to the effect of the Certificate as a whole. We do not think the court committed error in this respect. The Certificates were written in language complicated and confusing, so 'much so that the jury could not have been expected to obtain an intelligent conception of the same without such testimony. In addition, our review of the record convinces us that the charge was so thoroughly established that even if there be error in this respect, it was inconsequential.
The judgment is affirmed.
Brady v. United States, 8 Cir., 24 F.2d 399, 402; Worthington v. United States, 7 Cir., 64 F.2d 936, 938; Hass v. United States, 8 Cir., 93 F.2d 427, 429.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_genresp1
|
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.
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.
SPEAKER v. KEATING et al.
No. 337.
Circuit Court of Appeals, Second Circuit.
Aug. 7, 1941.
Rehearing Denied Sept. 4, 1941.
CLARK, Circuit Judge, dissenting.
Louis Klatzko, of New York City, for plaintiff-appellee.
Bergner & Bergner, of New York City^ (I. Maurice Wormser, Louis Bergner, and Benjamin Poller, all of New York City, of counsel), for defendants-appellants.
Before L. HAND, CHASE, and CLARK, Circuit Judges.
CHASE, Circuit Judge.
The plaintiff, a resident of New Jersey, is a daughter of Katherine Schaefer, a resident of New York, who died intestate August 2, 1939. The defendants are another daughter, a son, the husband of the deceased, and Mrs. Schaefer’s attorney, Adam Christmann, who was made a defendant because he had the custody of certain bonds and mortgages whose ownership is in issue but who had no interest in the controversy and neither filed an answer nor took an appeal. The defendants are all residents of New York and diversity is the basis of federal jurisdiction.
In December 1936, Mrs. Schaefer, who was estranged from her husband and had not been living with, or supported by, him for about thirty years wanted to make some disposition of her property which would make certain that he would get none of it. She then consulted defendant Christmann who advised her that under New York law her husband might not surely be entirely cut off by her will. She was also estranged from her daughter Lillian; had already provided for her son, Charles, as adequately as she intended to; and wanted to give the remainder of her property to her daughter Elsie but in such a way that she might have the use of the income so long as she lived. The property she wanted to give to Elsie consisted of seven mortgages securing bonds and Mr. Christmann advised her to assign them to Elsie and to herself as joint tenants. Mrs. Schaefer did execute such assignments on January 26, 1937 and they were all duly recorded on January 26, 1937.
The appellee knew, at least as early as December 21, 1936, that her mother intended to make the assignments of the mortgages for on that day she wrote her mother as follows: “I hereby authorize you to collect any and all interest on mortgages which may be held by myself and yourself, as joint tenants and sign for same. I further agree that I shall not make any claim against your estate for any interest that may have been collected by you.”
Mrs. Schaefer did collect the interest and did receive the principal of one of the mortgages which was paid. She and Elsie both executed the discharge of that mortgage and Mrs. Schaefer took the money under an arrangement she and Elsie had made in June 1937 that the proceeds of mortgages paid would be re-invested for them jointly though no such use was actually made of these funds. Another of the mortgages was cancelled when the mortgagor deeded the property to Mrs. Schaefer and Elsie as tenants in common though they would then have taken title to the property as joint tenants but for a mistake of the lawyer who drew the deed.
Mrs. Schaefer had possession of the mortgages before the assignments above mentioned and her son Charles, who had charge of her affairs generally as her agent, took them to Mr. Christmann who had them while drawing the assignments, and who also had the assignments after they were recorded until he delivered them together with the bonds and mortgages to Charles for Mrs. Schaefer. The trial judge stated in his opinion that “ * * * the witness Christmann held the papers after recording the assignments of mortgages for the benefit of both joint tenants” but there is no express finding to that effect and we find no evidence which would have supported one. The evidence was that the lawyer was employed by and acting for Mrs. Schaefer. After the death of Mrs. Schaefer, all the bonds and mortgages except the two either satisfied by payment or by a deed of the property were delivered by Charles to Christmann who holds them subject to disposition in accordance with the outcome of this litigation.
After the death of Mrs. Schaefer, the plaintiff became involved in a dispute with the other heirs as to the ownership of these bonds and mortgages. She claimed them as a surviving joint tenant. They, on the contrary, contended that the deceased had never made a gift of any part of them to the plaintiff which was valid under New York law. It is plain and undisputed that the law of New York controls. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.
In general, it is clear that in New York delivery is a condition upon the validity of a gift inter vivos and it has long been held that the requirement applies to a chose in action so as to make delivery of the documents necessary. Young v. Young, 80 N.Y. 422, 36 Am.Rep. 634. See also Beaver v. Beaver, 117 N.Y. 421, 22 N.E. 940, 6 L.R.A. 403, 15 Am. St. Rep. 531. In the Young case the intent of a father to make a gift of certain bonds was so well proved that the court was obviously reluctant to come to the conclusion it did that the gift was invalid for lack of delivery. The same principle has recently been reaffirmed in the Appellate Division, Viggiani v. Favata, 257 App.Div. 346, 13 N.Y.S.2d 353, and we feel compelled to accept it as the law of New York. In the last mentioned case the subject matter of the intended gift was a bond and mortgage which an uncle had had assigned, by one who held for him as his nominee, to his nephew and the assignment was duly recorded. The documents were, however, retained by the uncle until he died and it was held that lack of delivery to the donee made the intended gift invalid.
Notwithstanding this, the plaintiff insists that the gift here, being only of an interest in the property as joint tenant, was not subject to the strict rule of delivery applied in the above cases. This argument is twofold. First it is said that there was sufficient delivery in that after the execution and recordation of the assignment the return of the documents to Mrs. Schaefer was delivery to a joint tenant who, under applicable common law theories, held for the plaintiff as well as herself. This but begs the question, however, for we are here dealing not with what would have been the effect of delivery to Mrs. Schaefer after she and the plaintiff actually became joint tenants or with delivery to her by a third party from whom both were acquiring property as joint tenants but with a situation requiring delivery to effectuate a gift necessary to divest Mrs. Schaefer of her absolute ownership which would otherwise remain as before. Until, and unless, Mrs. Schaefer’s absolute ownership was changed in a lawful way she continued to be the owner and the mere return of the documents to her without any delivery to the plaintiff, or to anyone for the plaintiff, was as ineffective to alter the title as to a part as it would have been as to the whole since a diminution of Mrs. Schaefer’s former interest was required as a condition precedent to the creation of a joint tenancy setting up the necessary new interest in the plaintiff.
Second, it is argued that cases dealing with joint bank deposits are in point. But there is no analogy since such deposits are held by a third party subject to withdrawal in accordance with the deposit agreement. McElroy v. Albany Savings Bank, 8 App.Div. 46, 40 N.Y.S. 422. So, too, in the case of an insurance policy where the beneficiary does not take delivery of the policy since delivery to the insured is enough to make the insurer’s contract enforceable. Fowler v. Butterly, 78 N.Y. 68, 34 Am.Rep. 507.
Despite a natural desire to give effect to the clear intention of the deceased, we find it impossible to hold this assignment valid under New York law.
Judgment reversed.
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_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Robert Lee MARTINEZ, Appellant, v. UNITED STATES of America, Appellee.
No. 8034.
United States Court of Appeals Tenth Circuit.
April 7, 1965.
Charles L. Saunders, Jr., Denver, Colo., for appellant.
Lewis 0. Campbell, Asst. U. S. Atty. (John Quinn, U. S. Atty., with him on the brief), for appellee.
Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.
PER CURIAM.
A jury in the United States District Court for the District of New Mexico found appellant Martinez guilty of four counts charging narcotic offenses, and the court sentenced him to 6-year concurrent terms. He did not appeal. While a prisoner at La Tuna, Texas, he filed a habeas corpus petition in the sentencing court which treated it as a motion under 28 U.S.C. § 2255, and denied it without a hearing. Reversal is sought on the ground that a hearing should have been held.
The record and the order of the trial court show that the appellant was arrested on a warrant, was brought before a United States commissioner, was tried by a jury, did not testify in his own behalf, and was represented by retained counsel both before the commissioner and in the jury trial. No showing is made of the use at the trial of any illegally seized evidence or of any incriminating statements of the accused after arrest.
The papers filed by the appellant in the trial court defy intelligent analysis. Various legal principles are asserted without attempt to relate them to the facts of the case. An application for post-conviction relief, whether it be under § 2255 or by way of habeas corpus, which states bald conclusions unsupported by allegation of fact is legally insufficient and may be denied without a hearing.
In this court appointed counsel urges that the trial court should have appointed counsel for appellant and required that he be furnished with a trial transcript. A federal prisoner is entitled to no such exploratory aids on the basis of the showing made here. In a collateral attack on a judgment in a criminal case, the prisoner must allege some factual basis for the relief sought. This appellant has not done so. If a legally sufficient motion is subsequently filed, it should not be considered repetitious.
Affirmed.
. Stephens v. United States, 10 Cir., 246 F.2d 607. See also Sanders v. United States, 373 U.S. 1, 19, 83 S.Ct. 1068, 10 L.Ed.2d 148.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES of America, Appellee, v. Anthony CASTALDI, Appellant.
No. 137, Docket 29043.
United States Court of Appeals Second Circuit.
Argued Sept. 25, 1964.
Decided Nov. 17, 1964.
Robert M. Morgenthau, U. S. Atty. (Andrew M. Lawler, Jr., John A. Sprizzo, Asst. U. S. Attys., of counsel), for appellee.
Daniel H. Greenberg, New York City (Samuel W. Altman, Marvin Margolis, New York City, of counsel), for appellant.
Before LUMBARD, Chief Judge, and MOORE and SMITH, Circuit Judges.
MOORE, Circuit Judge.
Anthony Castaldi appeals from a judgment convicting him of criminal contempt of court. The conviction was based on his refusal to answer questions put to him before a Grand Jury in the Southern District of New York and before a District Judge on the ground that he might incriminate himself.
Castaldi had been indicted along with a score of co-defendants and co-eonspirators for conspiring to violate the federal narcotics laws. After a trial in 1963 he was one of five acquitted, eleven others being convicted. In February 1964 Castaldi was subpoenaed to testify before a federal grand jury investigating illicit narcotics traffic. At hearings in February, April and May 1964 he refused to answer all questions, some of which related to aspects of the conspiracy. On May 15th, at the Government’s request, Castaldi was granted immunity from future prosecution and ordered to answer, under 18 U.S.C.A. § 1406. On July 1st, his next appearance before the Grand Jury, and on July 2nd, before Judge Wyatt, he again refused to answer all questions. On notice and hearing as provided in Rule 42(b), Fed.R.Crim.P., Judge Wyatt found Castaldi guilty of disobedience of the Court’s orders requiring him to answer the questions put to him before the Grand Jury. Judge Wyatt sentenced him to two years’ imprisonment or until further order of the Court, should he answer the questions before the end of the sentence or the discharge of the Grand Jury. Castaldi’s request for a jury trial was denied.
Castaldi now contends that: (1) the prior acquittal operates to bar a contempt conviction based on a refusal to answer questions concerning in part the subject matter of the earlier proceeding; (2) he was constitutionally entitled to an indictment and trial by jury; and (3) the two-year sentence is constitutionally impermissible. We reject all three contentions.
The conspiracy acquittal, Castaldi argues, should bar his contempt conviction under principles of double jeopardy, res judicata and collateral estoppel. However, the acquittal in no way gave Castaldi permanent freedom to refuse to answer all questions relating to possible narcotics violations merely because they might have some connection with an earlier trial. Indeed, the Supreme Court held in both Reina v. United States, 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed. 2d 249 (1960) and Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (1961), that a prior conviction did not create a right to refuse to answer questions relating to the underlying crime. “‘[T]he public has a right to every man’s evidence.’ ” Piemonte, supra, 367 U.S. at 559 n. 2, 81 S.Ct. at 1722. If three persons witness an offense — an innocent bystander, a suspect who is convicted, and a suspect who is acquitted — - the acquitted suspect has no more right to keep silent than do the other two. See Piemonte, ibid. Because the contempt conviction is not the same offense as in the earlier conspiracy proceeding, double jeopardy plays no role here, just as it plays no role in the case of a prior conviction. Similarly, the doctrines of res judicata and collateral estoppel both contemplate subsequent litigation involving claims and facts already once adjudicated. The only question in the contempt proceeding was whether Castaldi wrongly refused to obey court orders; not whether he conspired to sell narcotics.
Castaldi is not being retried. .Nor does his acquittal establish as a matter of law his lack of knowledge concerning narcotics traffic as he claims. All that the Government was required to show was that it had complied with the statute. This it has done. See Ullman v. United States, 350 U.S. 422, 434, 76 S.Ct. 497, 100 L.Ed. 511, 53 A.L.R.2d 1008 (1956) dealing with a similar statute, 18 U.S.C.A. § 3486, 68 Stat. 745.
Castaldi next claims that he was entitled to an indictment and jury trial under the Fifth and Sixth Amendments to the Constitution. His arguments on these points involve constructions of the statutes which classify federal offenses and define criminal contempt (18 U.S. C.A. §§ 1 and 401). Briefly, he argues that the punishment for criminal con-.tempt is in the court’s discretion and might possibly exceed one year, that sentencing for more than one year makes an offense a felony, that a felony is an “in- . famous” crime, and that, therefore, there should have been an indictment and jury trial. This argument was made and rejected in United States v. Green, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958), which upheld a three-year sentence. That principle was recently reaffirmed in United States v. Barnett, 376 U.S. 681, 692, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964), which again ruled against a • constitutional right to a jury trial in . a criminal contempt case.
Castaldi does not have a statutory right to a jury trial. Congress has -provided for a jury trial in only certain , criminal contempt proceedings. See, e. g., 18 U.S.C.A. §§ 402, 3691, 3692; Civil Rights Act of 1964, § 1101, 78 Stat. 268. But under all of these statutes no right to a jury trial exists with respect to con-tempts committed in the presence of the court. And that is what Castaldi is convicted of.
Lastly, we come to the claim that the penalty which may be imposed is limited to that for petty offenses, because of the absence of a jury trial. Castaldi cites footnote 12 in United States V. Barnett, 376 U.S. at 694-695, 84 S.Ct. at 903, in which the Court added a “dictum” that “Some members of the Court are of the view that, without regard to the seriousness of the offense, punishment by summary trial without a jury would be constitutionally limited to that provided for petty offenses.” But as we noted in United States v. Harris, 334 F.2d 460, 463 (2d Cir.), cert. granted, 85 S.Ct. 438, the contempt in Barnett was not committed in the presence of the court and the contempt proceeding took place after compliance with the court order. Here, as in Harris, the contempt was committed in the court’s presence and the proceeding preceded compliance. But cf. Rollerson v. United States, No. 17675, D.C.Cir., Oct. 1, 1964.
Moreover, the sentence has a purge clause by which Castaldi “carries the keys to freedom in his willingness to comply with the court’s directive * *." United States v. Barnett, 376 U.S. at 727 n. 6, 84 S.Ct. at 1031 (dissenting opinion of Black, J.), id. at 754, 84 S.Ct. at 1020 (dissenting opinion of Goldberg, J.). Sentences similar to this were upheld in United States v. Reina, supra; United States v. Testa, 334 F.2d 746 (3d Cir.), cert. denied, 85 S.Ct. 83 (1964); see United States v. Rinieri, 308 F.2d 24 (2d Cir.), cert. denied, 371 U.S. 935, 83 S.Ct. 310, 9 L.Ed.2d 272 (1962).
Castaldi’s attempt to distinguish Harris as arising under Rule 42(a), Fed.R. Crim.P., for summary contempts, whereas this case arose under Rule 42(b) for disposition on notice and hearing, is without merit. His refusal to answer was m,ade in the presence of the court and would have justified a proceeding under Rule 42(a). If the sentence would be permissible then under Harris, it can hardly be made impermissible by the fact that the court chose to proceed under Rule 42(b), by which other additional protections were afforded.
The judgment appealed from is affirmed.
. The convictions were later reversed and a new trial ordered. United States v. Borelli, 336 F.2d 376 (2d Cir. 1964).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Chester L. EDGERTON, Appellant, v. STATE OF NORTH CAROLINA, Appellee.
No. 8749.
United States Court of Appeals Fourth Circuit.
Argued Jan. 21, 1963.
Decided March 14, 1963.
Ronald P. Wertheim, Philadelphia, Pa. (Court-assigned counsel), (Daniel J. Meador, Charlottesville, Va., on brief), for appellant.
Harry W. McGalliard, Asst. Atty. Gen. of North Carolina (T. W. Bruton, Atty. Gen. of North Carolina, on brief), for ap-pellee.
Before SOBELOFF, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges.
J. SPENCER BELL, Circuit Judge.
The petitioner’s application for a writ of habeas corpus was denied by the District Court without a plenary hearing and without requiring the State of North Carolina to file a response. This court granted leave to appeal in forma pauperis, issued a certificate of probable cause, and appointed counsel.
The District Court did, however, consider the allegations of the writ in the light of all the records of the state court proceedings relevant to a review of the federal constitutional questions in reaching its decision to deny the writ. These records are before us.
Thus the question before this court is: Does the petition allege facts which constitute a denial of petitioner’s constitutional rights and which are not patently frivolous or false when considered against the record which the District Court had before it? Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956). We think it does.
The petitioner alleges that he was arrested on November 19, 1957, on a warrant charging two capital offenses: burglary in the first degree, and rape; that he remained in jail without knowledge of the charges against him and without legal advice or assistance until January 14, 1958; that on January 13,1958, the grand jury indicted him for these two offenses; that on January 14, 1958, counsel was appointed by the court at his arraignment ; that on this same day his court appointed counsel approached him with a previously prepared plea of guilty to the burglary charge and urged him to sign the same in order to save Ms life; that he refused to sign that day, and upon his plea of not guilty his case was postponed until the next term of court; that his counsel continued to urge him to plead guilty to the burglary charge because they had obtained an agreement from the solicitor to a life sentence if he pleaded guilty. Whereupon on January 15, 1958, “relying wholly upon the loyalty and integrity of his counsel and in fear of his life and not because he was guilty”, he changed his plea. On that same day the court sentenced him to jail for life, and the charge of rape was dropped.
The petition further alleges that he had been intimate on many occasions with the prosecuting witness, who swore (presumably before the grand jury) that he had been to her house only once. The petition concludes with a list of witnesses who can prove his innocence and requests a hearing.
We first examine the factual allegations of the petition against the records which were before the District Court to ascertain if they are patently false. The warrant shows that the petitioner was arrested on November 19,1957, for offenses alleged to have been committed the night before. The record gives no evidence of the appointment of counsel until January 14, 1958, the date of the arraignment. It shows that on that day he • pleaded not guilty, but changed his plea the following day with the understanding that he was to get a life sentence. Another January 15th entry shows that he was sentenced to life and committed on that day; that his then court appointed attorneys were paid a total of $100.00 for their services. Thus it would appear that the record, insofar as it goes, confirms rather than contradicts the factual allegations of the petition.
In addition to the minutes of the orig- ' inal trial, the court had before it an order in a state court post-conviction hearing and affidavits of the sheriff and of petitioner’s counsel. The substance of the sheriff’s affidavit is that when arrested the petitioner “asked him about witnesses” and was told to furnish a list of them to his jailer. It is argued here that this affidavit shows the petitioner knew ' the nature of the charges for which he was to be tried. The logic of this argu- ' ment escapes us. The substance of counsel’s affidavit is that they made diligent inquiry into the circumstances; conferred with state’s witnesses and those . to whom the petitioner referred them; consulted with petitioner and the solici- ‘ tor, and, deciding the petitioner had no valid defense, persuaded the solicitor to accept a plea of guilty to the burglary charge, thus insuring the saving of the petitioner’s life. It further avers that all the circumstances were explained to the petitioner and that he voluntarily signed the guilty plea. But the gist of the allegations is not that petitioner was .coerced to sign his plea by physical force or threat, but that he signed it from fear which grew out of his knowledge that no preparations had been made which would afford him a defense to the charges against him. This could be a more virulent form of coercion than physical threat. We have reviewed these affidavits in some detail on the assumption that they were properly in evidence before the state court in the post-conviction hearing, and, therefore, reviewable by the District Court as a part of the record. Upon examination of the state post-conviction order itself, we find that it does not resolve the factual issues raised by the unanswered petition in this case. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Davis v. North Carolina, 310 F.2d 904 (4 Cir., 1962). The order recites that evidence, oral and written, was taken but the order is silent as to what the evidence was and who gave it. Only the two affidavits above are on record to support the order. The order finds that the defendant was indicted on a valid bill of indictment; that his appointed counsel were able lawyers; that they conferred with him, and that he knowingly and voluntarily entered his plea of guilty and received a fair and impartial trial'.
We would concede that able counsel did the best they could under the exigency of the circumstances. But the allegations of the petition are that they and the petitioner had no opportunity to prepare a defense because of the late appointment and the petitioner’s incarceration for sixty days before trial without knowledge of the charges and without legal advice and assistance. Indeed the petition alleges that the guilty plea was prepared before the attorneys conferred with him. Nowhere in either the affidavits or the order are these facts contradicted. The best advice obtainable is worth little if it is not based upon a thorough knowledge of the facts of the case, particularly where such a Hobson’s choice as this is involved. The Constitution requires the Court to furnish an indigent “the guiding hand of counsel”. Powell v. Alabama, 287 U.S. 45, at page 69, 53 S.Ct. 55, at page 64, 77 L.Ed. 158 (1932). The act of appointing counsel is not enough if in the circumstances the traverser is not afforded in any substantial sense professional advice and guidance, and this includes an opportunity to prepare for trial. Jones v. Cunningham, 297 F.2d 851, 855 (4 Cir., 1962).
If the allegations of this petition are true, Edgerton is serving a life sentence based upon a plea of guilty to a charge of which he is innocent which is supported solely by the credibility of his former paramour and her infant child. That plea was entered upon advice of counsel, who had at most a few minutes to inform themselves of the facts. In the context of this case the allegations are neither patently false nor patently frivolous. The ease is remanded for a plenary hearing.
Remanded.
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_stpolicy
|
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 interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Robert Earl MILLER, Plaintiff-Appellant, v. J. E. “Bill” DECKER, Defendant-Appellee.
No. 26300.
United States Court of Appeals Fifth Circuit.
May 2, 1969.
Mike Barclay, Dallas, Tex., for appellant.
Henry Wade, Dist. Atty., Malcolm Dade, Dallas, Tex., for appellee.
Before THORNBERRY and SIMPSON, Circuit Judges, and CASSIBRY, District Judge.
CASSIBRY, District Judge:
This is an appeal from an order of the District Court denying Robert Earl Miller’s application for writ of habeas corpus which asserted the invalidity of the proceeding to extradite him from the State of Texas to the State of California. We affirm.
Appellant Miller contends that the extradition proceeding against him is unlawful because he was not in California, the demanding state, at the time he was alleged to have violated Section 270 of the California Penal Code by failing to make support payments for his minor children and he therefore was not a fugitive from justice and was not subject to extradition under the Constitution and laws of the United States. Appellee J. E. “Bill” Decker, Sheriff of Dallas County, Texas, contends that the extradition proceeding was lawful under state statutes permitting extradition of accused persons not in the demanding state at the time of the commission of the alleged offense.
The issue in the case is whether Article IV, Section 2 of the Constitution of the United States and the federal implementing legislation impliedly prohibit a state from enacting legislation permitting the extradition of a person not within the demanding state at the time the alleged offense occurred.
Appellant was divorced from his wife in San Diego County, California and ordered to make support payments to his former wife and their children. Until he left California in March 1963 he was current in his payments, but since that time he has become delinquent. The State of California charged him with violating Section 270 of the California Penal Code for his failure to make the support payments for his minor children and initiated extradition proceedings against him in Texas. The Governor of Texas issued his warrant for the extradition of appellant on March 30, 1967 and the appellant was thereafter arrested in Dallas County.
On April 10 appellant applied for a writ of habeas corpus in the state court, Criminal District Court Number 5 of Dallas County, Texas. That court denied the application on May 1 and remanded the appellant to the custody of the appel-lee. The Court of Criminal Appeals of Texas affirmed that order in December and the appellant initiated the present habeas corpus proceeding in the United States District Court for the Northern District of Texas on January 17, 1968.
The Constitution of the United States, Article IV.- Section 2, Clause 2 provides:
“A person charged in any State with Treason, Felony, or other crime, who shall flee from Justice, and be found in another State, shall on Demand of the Executive Authority of the State from which he fled, be. delivered up, to be removed to the State having Jurisdiction of the Crime.”
The statute which implements the constitutional provision, Title 18, § 3182, U.S.C. (1948) is to the effect that whenever the executive authority of any state demands any person, as a fugitive from justice, of the executive authority of any state to which such person has fled, and produces properly authenticated documents charging the person demanded with having committed a crime, it shall be the duty of the executive authority of the state to which such person has fled to cause him to be arrested and to cause him to be delivered to the agent of the demanding state.
Appellant relies on the cases of Hyatt v. People of State of New York ex rel. Corkran, 188 U.S. 691, 23 S.Ct. 456, 47 L.Ed. 657 (1903); Fowler v. Ross, 90 U.S.App.D.C. 305, 196 F.2d 25 (1952); and Moncrief v. Anderson, 119 U.S.App. D.C. 323, 342 F.2d 902 (D.C. Cir. 1964) which recognize that the Constitution and the implementing legislation authorize extradition only when the one charged with crime is a fugitive from the demanding state and he is a fugitive only if he was in the demanding state at the time of the alleged crime.
The appellee does not argue that extradition of the appellant was authorized by the federal statute or the Constitution, but contends that it was authorized by valid state legislation enacted in an area outside the scope of the Constitution and within the reserved power of the State. The Uniform Reciprocal Enforcement of Support Act, which has been adopted by Texas and forty-six other states, Guam, District of Columbia, Puerto Rico, and the Virgin Islands, permits extradition when the accused is not in the demanding state at the time of the commission of the crime and has not fled therefrom. The pertinent provision appears in Texas Civil Statutes, Art. 2328b-4, Sec. 5 and a comparable provision of the Uniform Criminal Extradition Act, which has been adopted by forty-two states, the Panama Canal Zone and the Virgin Islands, appears in Texas C.C.P. Art. 51.13, Sec. 6.
State courts in Texas have held both provisions to be constitutional, and the states regard it as well settled that the federal constitutional and statutory provisions are not exclusive and that the states are free to cooperate with one another by enacting such legislation to extend interstate rendition beyond that authorized by federal law.
The cases relied on by appellant, cited heretofore, did not involve state legislation permitting extradition when the person charged was not in the demanding state at the time of the alleged offense and they may be regarded only as recognizing the limitations of the extent and scope of the federal constitutional and statutory provision and not as determining the states’ power to enact legislation supplementary to the Constitution and federal statute.
A Federal court in the case of Morgan v. Horrall, 175 F.2d 404 (9th Cir. 1949), however, did have before it the same issue as is presented here. Morgan contended in a habeas corpus proceeding that, among other reasons, his extradition from California to Colorado was unlawful because that part of the Uniform Criminal Extradition Act adopted by California allowing his extradition when he was not in the demanding state at the time of his alleged offense was repugnant to Article IV, Section 2, Clause 2 of the United States Constitution and the federal implementing legislation. Morgan had previously sought his release by writ of habeas corpus in the state courts and his constitutional arguments were rejected there. Ex parte Morgan, 86 Cal.App.2d 217, 194 P.2d 800 (review refused by Supreme Court of California). The Court of Appeals for the Ninth Circuit held that he had madé no showing of a violation of his rights under the Constitution to cause the Court to disturb the state courts’ interpretation of the meaning and applicability of the California statute. In its full consideration of the federal constitutional issue presented, the California District Court of Appeal had concluded that the state statute applied outside the sphere of the federal statute, was not inconsistent with it or an obstacle to the accomplishment of its purposes, and that the Federal Constitution and statute neither expressly nor impliedly prohibited the legislation by the state providing for extradition of persons not in the demanding state at the time of the alleged offense.
The decision in Morgan v. Horrall is consistent with the spirit and púrpose of the Constitutional provision as recognized by the Supreme Court of the United States in Ex parte Commonwealth of Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717 (1861) in an opinion reviewing the clause’s history and its reason for being in the Constitution. The purpose of the provision was not to restrict interstate extradition, but to promote it by avoiding having the surrender by the states of fugitives from justice a matter of discretionary comity; not to render the states powerless to surrender persons wanted for criminal prosecution in other states, but to compel them to surrender such persons.
The interests of federalism demanded that the states relinquish the exercise of their sovereign power to withhold the surrender of a fugitive from justice. To prevent the failure of this complex government the states had to give aid and assistance to each other in executing their laws, and to support each other in preserving order and law within its confines, whenever such aid was needed and required, and the framers realized that “nothing would be more likely to disturb its peace, and end in discord, than permitting an offender against the laws of a state, by passing over a mathematical line which divides it from another, to defy its process, and stand ready, under the protection of the state, to repeat the offense as soon as another opportunity offered.” Ex parte Commonwealth of Kentucky v. Dennison, supra.
The Court viewed the clause as a compact morally binding the states to deliver a fugitive upon demand of the state charging him with crime and from which he has fled. The compelling necessity for the clause caused it to be drafted in strong, commanding language implying that the right to “demand” is an absolute right and the correlative obligation to “deliver” is an absolute duty.
We consider that the Constitutional right to demand the surrender of a fugitive is not made any less absolute and the obligation to deliver is not made any less compelling by the states’ retention of their sovereignty to provide for the extradition of non-fugitives within their discretion. Neither Article IV, Section 2, Clause 2, nor the federal statute expressly negate the power of the states to provide for the extradition of persons who are not fugitives in the technical sense. The history of and the reason for the clause afford no basis for an interpretation that the states impliedly relinquished their sovereignty in all extradition matters outside the sphere of the clause, and no reason has been advanced to us which would support or compel such an interpretation.
The administration of criminal justice is served by a construction which would not restrict the states in their efforts to cooperate with each other in this area. The fallacy of implying from Article IV, Section 2, which compels the delivering up of fugitives from justice, a denial of the states’ power to fashion other cooperative arrangements for the administration of justice was pointed out by the Supreme Court of the United States in People of the State of New York v. O’Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed. 2d 585, wherein the Court upheld the validity of Florida’s statute entitled “Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings”. Fla. Stat.1957, §§ 942.01-942.06, F.S.A. The Court observed:
“* * * jn adjudging the validity of a statute effecting a new form of relationship between States, the search is not for a specific constitutional authorization for it. Rather, according the statute the full benefit of the presumption of constitutionality which is the postulate of constitutional adjudication, we must find clear incompatibility with the United States Constitution. The range of state power is not defined and delimited by an enumeration of legislative subject-matter. The Constitution did not purport to exhaust imagination and resourcefulness in devising fruitful interstate relationships. It is not to be construed to limit the variety of arrangements which are possible through the voluntary and cooperative actions of individual States with a view to increasing harmony within the federalism created by the Constitution. Far from being divisive, this legislation is a catalyst of cohesion. It is within the unrestricted area of action left to the States by the Constitution.”
We are of the opinion that it would be equally fallacious to imply from Article IV, Section 2 a denial of the states’ power to legislate for the delivering up of offenders who are non-fugitives.
Affirmed.
. 9C U.L.A. 9, 38 (1967 P.P.)
. “The Governor of this State (1) may demand from the Governor of any other state the surrender of any person found in such other state who is charged in this State with the crime of failing to provide for the support of any person in this State and (2) may surrender on demand by the Governor of any other state any person found in this State who is charged in such other state with the crime of failing to provide for the support of any person in such other state. The provisions for extradition of criminals not inconsistent herewith shall apply to any such demand although the person whose surrender is demanded was not in the demanding state at the time of the commission of the crime and although he had not fled therefrom. Neither the demand, the oath nor any proceedings for extradition pursuant to this section need state or show that the person whose surrender is demanded has fled from justice, or at the time of the commission of the crime was in the demanding or other state.”
. 9 U.L.A. 143 (1967 P.P.)
. “The Governor of this State may also surrender, on demand of the Executive Authority of any other State, any person in this State charged in such other State in the manner provided in Section 3 with committing an act in this State, or in a third State, intentionally resulting in a crime in the State whose Executive Authority is making the demand, and the provisions of this Article not otherwise inconsistent, shall apply to such cases, even though the accused was not in that State at the time of 'the commission of the crime, and has not fled therefrom.”
. Ex parte Coleman, 157 Tex.Cr.App. 37, 245 S.W.2d 712; Ex parte Peairs, 162 Tex.Cr.App. 243, 283 S.W.2d 755, appeal dismissed 350 U.S. 858, 76 S.Ct. 104, 100 L.Ed. 762 for lack of a substantial federal question.
. Harrison v. State, 38 Ala.App. 60, 77 So.2d 384; Lindley v. Crider, 223 Ark. 200, 265 S.W.2d 498; Ex parte Morgan, 86 Cal.App.2d 217, 194 P.2d 800; In re Cooper, 53 Cal.2d 772, 3 Cal.Rptr. 140, 349 P.2d 956; Ennist v. Baden, 158 Fla. 141, 28 So.2d 160; Clayton v. Wichael, 258 Iowa 1037, 141 N.W.2d 538; State ex rel. Gildar v. Kriss, 191 Md. 568, 62 A.2d 568; Ex parte Dalton, 56 N.M. 407, 244 P.2d 790; People ex rel. Faulds v. Herberich, 276 App.Div. 852, 93 N.Y.S.2d 272, aff’d 301 N.Y. 614, 93 N.E.2d 913; Culbertson v. Sweeney, 70 Ohio App. 344, 44 N.E.2d 807; English v. Matowitz, 148 Ohio St. 39, 72 N.E.2d 898; Ex parte Bledsoe, 93 Okl.Cr. 302, 227 P.2d 680.
. 194 P.2d 800. The Supreme Court denied certiorari in the case from the Ninth Circuit. 338 U.S. 827, 70 S.Ct. 76, 94 L.Ed. 503.
. Appellant purposes to use the provision to shield him from extradition. He argues that it does not authorize the extradition of non-fugitives and that it impliedly denies the states the power to provide for their extradition. The clause was never intended to benefit interstate criminals who are non-fugitives by conferring upon them immunity from extradition. See Mahon v. Justice, 127 U.S. 700, 8 S.Ct. 1204, 32 L.Ed. 283 (1888) to the effect that there is no constitutional right of asylum.
. There are decisions which contain dicta stating that the power to legislate upon the subject of extradition lies exclusively with the federal government. Prigg v. Commonwealth, 16 Pet. 539, 41 U.S. 539, 10 L.Ed. 1060 (1842); Ex parte Reggel, 114 U.S. 642, 5 S.Ct. 1148, 29 L.Ed. 250 (1885); Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544 (1885); Hyatt v. People ex rel. Corkran, supra; cf. Innes v. Tobin, 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562 (1916) recognizing the authority of a state to act in an extradition matter beyond the purview of the federal statute.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_procedur
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Juani CAPASOTTI, Plaintiff in Error, v. UNITED STATES, Defendant in Error.
(Circuit Court of Appeals, Second Circuit.
April 15, 1926.)
No. 285.
.In Error to the District Court of the United States for the Southern District of New York.
Abraham Solomon, of New York City (Saul Gordon, of New York City, on the brief), for plaintiff in error.
Ben Herzberg, of New York City, for the United States.
Before HOUGH, MANTON, and HAND, Circuit Judges.
PER CURIAM.
Judgment affirmed in open court.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_direct1
|
B
|
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.
Mrs. Emma Jean HALPHEN, Plaintiff-Appellee, v. JOHNS-MANVILLE SALES CORPORATION, Defendant-Appellant.
No. 82-3388.
United States Court of Appeals, Fifth Circuit.
July 26, 1984.
Clark, Chief Judge, filed dissenting opinion.
Strong, Pipkin, Nelson, Parker & Bissell, John G. Bissell, Michael L. Baker, Beaumont, Tex., for defendant-appellant.
Kermit A. Doucet, Lafayette, La., Helm, Pletcher, Hogan & Burrow, Stephen W. Hanks, Houston, Tex., for plaintiff-appel-lee.
Robert S. Rooth, New Orleans, La., for amicus curiae Owens-Illinois, Inc.
Before CLARK, Chief Judge, POLITZ and JOHNSON, Circuit Judges.
POLITZ, Circuit Judge:
This Louisiana diversity case occasions an examination of Louisiana strict products liability law, particularly the parameters of the requirement of foreseeability, as applied to a case involving asbestos-related cancer. Johns-Manville appeals a verdict awarding damages for the illness and death of Samuel J. Halphen who succumbed to malignant mesothelioma, which the jury found was caused by exposure to asbestos products manufactured by Johns-Manville. Finding no basis for reversal, we affirm.
Facts
Samuel J. Halphen contracted and died from malignant mesothelioma, a rare form of cancer commonly caused by exposure to asbestos. Halphen worked in environments laden with asbestos dust, some emanating from products manufactured and supplied by Johns-Manville. During 1944 Halphen was employed by Asbestos and Magnesia Materials Company, a subcontractor who installed Johns-Manville manufactured asbestos insulation in the Consolidated Shipyard in Orange, Texas. In later years, Halphen worked as a mechanic and flight engineer for the United States Air Force. He may have been exposed to asbestos dust during that time.
Interrogatories were propounded to Hal-phen during his terminal period of hospitalization. In response to the interrogatories, Halphen stated that he worked in the Livingston Shipyards, not the Consolidated Shipyards. Halphen’s recollection during the final stage of his life was not supported by his social security employment records or by a cousin who testified that he had in fact worked at Consolidated.
Halphen filed suit against 16 asbestos products manufacturers seeking recovery under the theory of strict liability. All defendants except Johns-Manville were dismissed before trial. After Halphen’s death, his widow, Emma Jean Halphen; was substituted as party-plaintiff. The jury returned a verdict against Johns-Man-ville.
Discussion
A. Foreseeability in Strict Liability
Stripped to its essentials, Johns-Manville’s primary contention is that it cannot be held strictly liable for injuries incurred due to its failure to warn of potential dangers of its product because it could not foresee the particular harm. Specifically, Johns-Manville maintains that it cannot be held strictly accountable for asbestos-related diseases caused by its products because, when it marketed the products, it did not know that asbestos would cause serious illnesses. Johns-Manville urges the “state of the art” defense, asserting that it did not know of the product’s defect, nor did anyone else, and furthermore, there was no way that it could have known. The thrust of the state of the art defense is that scientific knowledge and methods of research were not advanced enough to permit discovery of the defect.
In this diversity case we are obliged to apply Louisiana’s substantive law. Louisiana law on strict products liability is of relatively recent vintage, but the infant quickly grew to adulthood. This body of law is essentially jurisprudential, although drawing its genesis from revered codical provisions.
The seminal case in which the Supreme Court of Louisiana adopted strict liability for manufacturers in products cases is Weber v. Fidelity & Casualty Ins. Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971). Johns-Manville advances what it perceives to be an inconsistency or confusion in the language of the Weber holding on the critical question of foreseeability. The Louisiana Supreme Court held:
A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by the defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated.
Id. at 755 (emphasis added). Johns-Man-ville argues from this language that not only must the injury be foreseeable but the defect must also be foreseeable. However, the Louisiana high court continued:
If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.
Id. at 756 (emphasis added). This holding imposes a presumption of knowledge of the defect which requires no showing of foreseeability.
A careful reading of the Louisiana cases reflects the distinction between foreseeability of the defect and foreseeability of the harm that might flow from the defect. For example, in Hunt v. City Stores, Inc., 387 So.2d 585, 589 (La.1980), the court stated:
[T]he plaintiff in a products liability suit must only prove that the product was defective, i.e., unreasonably dangerous to normal use; that the product was in normal use at the time the injury occurred; that the product’s defect might cause his injury; and that the injury might reasonably have been anticipated by the manufacturer. It is unnecessary to prove that the manufacturer was negligent' because he knew or should have known of the dangerous condition of the product at the time of the manufacture or sale. The focus is on the product itself and whether it is unreasonably dangerous to normal use.
(Emphasis added). These two sentences, which leave a mite to be desired for precision writing, are logically consistent only if the foreseeability element is taken to mean that the injury must be foreseeable when viewed in light of the knowledge of the dangerous defect. The injury must be foreseeable; the defect need not be. That interpretation is internally consistent and is consistent with the holdings in other Louisiana cases. See, e.g., Philippe v. Browning Arms Company, 395 So.2d 310 (La. 1980).
Foreseeability of the risk, as distinguished from the foreseeability of injury once the risk is actually or constructively known, is the hallmark of a negligence action; it is the antithesis of a strict products liability action: “The distinction between the two theories of recovery lies in the fact that the inability of a defendant to know or prevent the risk is not a defense in a strict liability case but precludes a finding of negligence.” Hunt at 588. See also, Entrevia v. Hood, 427 So.2d 1146 (La.1983).
The thrust of Louisiana law is certain — in a strict products liability case, the manufacturer is presumed to know the defects of its product. The presumption suffices; no proof is necessary. The injured party need only show that the injury would reasonably be foreseeable to one with knowledge (actual or imputed) of the defect. The Louisiana Supreme Court bright-lined this rule in Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982):
In products liability cases, the manufac-' turer is presumed to know the dangerous propensities of its product and is strictly liable for injuries resulting from the product’s unreasonable risk of injury in normal use. The claimant nevertheless must prove that the product presented an unreasonable risk of injury in normal use (regardless of the manufacturer’s knowledge), thus in effect proving the manu facturer was negligent in placing the product in commerce with (presumed) knowledge of the danger.
Id. at 498 n. 6 (emphasis in original).
Johns-Manville invites our attention to Lartigue v. R.J. Reynolds Tobacco Company, 317 F.2d 19 (5th Cir.1963), as a controlling precedent for its state of the art, lack of foreseeability defense. In La-rtigue, we predicted that Louisiana would not hold a cigarette manufacturer strictly liable for failure to warn of the dangers of cigarette smoking. Lartigue no longer has precedential value. First, eight years after our Lartigue prognostication Louisiana adopted the rule of strict liability for products. Second, Lartigue relied on a prior draft of § 402(a) of the Restatement of Torts which related only to foodstuffs. The current Restatement section encompasses any unreasonably dangerous product. Third, the restrictive view of strict liability taken in Lartigue did not correctly anticipate the direction taken by the Louisiana courts. When Lartigue was decided, only 19 states had adopted the Restatement’s view. Now virtually all jurisdictions have adopted rules on strict liability. Louisiana has adopted a broad, liberal view. See, e.g., Robertson, “Manufacturers’ Liability for Defective Products in Louisiana Law,” 50 Tul.L.Rev. 50 (1975). Our prediction in Lartigue missed the mark; Louisiana opted for a different course.
It is our present perception of Louisiana law that a manufacturer is presumed to know the defects in its product. Foreseeability is not an element in that equation. Foreseeability, in a Louisiana products liability case, applies only to the question of injury. See, e.g., DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981). The essential inquiry, then, is whether a manufacturer, with knowledge of the defect, should reasonably anticipate the injury. In this case, Johns-Manville was presumed to know that its product was defective, specifically, Johns-Manville was presumed to know that its product would cause, exacerbate or enhance carcinomatous growths. With that presumed knowledge, the suggestion that Johns-Manville could not foresee Halphen’s malignant me-sothelioma falls of its own weight.
B. Sufficiency of Evidence
Johns-Manville next maintains that there was insufficient evidence to support a finding that its asbestos products played a substantial part in Halphen’s illness and death. We disagree.
There is no dispute that Halphen died of mesothelioma. There is no dispute that this particularly rare type of cancer is linked to and is most prevalent among persons who have been exposed to asbestos particles. The evidence showed that Hal-phen was employed by a company at a time when that company was using Johns-Man-ville’s asbestos products. The evidence also showed the likelihood that Halphen was exposed to the asbestos during this employment.
The jury found sufficient evidence to connect Halphen’s mesothelioma to Johns-Manville’s . asbestos products. We will reject a jury’s factual findings only when the “facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict.” Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir.1969). The jury’s findings in the instant case pass Boeing v. Shipman muster.
C. Inconsistency of Interrogatories
In its final argument, Johns-Manville contends that the testimony given by Annie Wilson, Halphen’s cousin, that Halphen worked in the Consolidated Shipyard in Orange, Texas, as well as the testimony given by other former employees of Consolidated about the working conditions should have been excluded. In an answer to an interrogatory made shortly before his death, Halphen stated that he had worked in the Livingston Shipyard, not the Consolidated Shipyard. Johns-Manville, relies on Fed.R.Civ.P. 26(e)(2), which states:
A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
Johns-Manville asserts that the failure to amend the answer to the interrogatory after Halphen died, when it became clear to Mrs. Halphen and her counsel that the answer was incorrect, constituted a knowing concealment.
The evidence does not support the charge of knowing concealment. Johns-Manville was: (1) supplied with copies of Halphen’s social security records which showed his employment at Consolidated, (2) informed by appropriate pre-trial notice of plaintiffs intent to call as witnesses two former Consolidated employees, and (3) was afforded proper notice of plaintiffs intent to call Annie Wilson as a witness.
The standard under Rule 26(e)(2) is whether the party was “prejudicially surprised.” Shelak v. White Motor Co., 581 F.2d 1155, 1159 (5th Cir.1978). The rule seeks to prevent “trial by ambush.” Dilmore v. Stubbs, 636 F.2d 966, 969 n. 2 (5th Cir.1981). A reversal under this rule is only justified when a party seeks to introduce a completely new issue or an unidentified witness. F & S Offshore, Inc. v. K.O. Steel Castings, Inc., 662 F.2d 1104 (5th Cir.1981). We do not find knowing concealment within the intendment of Rule 26(e)(2).
AFFIRMED.
. This appeal is not stayed as a consequence of the Johns-Manville petition for a Chapter 11 reorganization in bankruptcy court in the Southern District of New York, having been authorized by the bankruptcy court with the understanding that the plaintiff will look solely to the supersedeas bond in satisfaction of judgment.
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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sc_authoritydecision
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
RANKIN et al. v. McPHERSON
No. 85-2068.
Argued March 23, 1987
Decided June 24, 1987
Marshall, J., delivered the opinion of the Court, in which Brennan, Blackmun, Powell, and Stevens, JJ., joined. Powell, J., filed a concurring opinion, post, p. 392. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and White and O’Connor, JJ., joined, post, p. 394.
Billy E. Lee argued the cause for petitioners. With him on the briefs was Mike Driscoll.
Glen D. Nager argued the cause pro hac vice for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Lauber, and Leonard Schaitman.
Lloyd N. Cutler argued the cause for respondent. With him on the brief were William R. Richardson, Jr., Bruce V. Griffiths, Alvin J. Bronstein, and David B. Goldstein
David Crump, Wayne W. Schmidt, and James P. Manak filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal.
Robert H. Chanin and Jeremiah A. Collins filed a brief for the National Education Association as amicus curiae urging affirmance.
Justice Marshall
delivered the opinion of the Court.
The issue in this case is whether a clerical employee in a county Constable’s office was properly discharged for remarking, after hearing of an attempt on the life of the President, “If they go for him again, I hope they get him.”
I
On January 12, 1981, respondent Ardith McPherson was appointed a deputy in the office of the Constable of Harris County, Texas. The Constable is an elected official who functions as a law enforcement officer. At the time of her appointment, McPherson, a black woman, was 19 years old and had attended college for a year, studying secretarial science. Her appointment was conditional for a 90-day probationary period.
Although McPherson’s title was “deputy constable,” this was the case only because all employees of the Constable’s office, regardless of job function, were deputy constables. Tr. of Oral Arg. 5. She was not a commissioned peace officer, did not wear a uniform, and was not authorized to make arrests or permitted to carry a gun. McPherson’s duties were purely clerical. Her work station was a desk at which there was no telephone, in a room to which the public did not have ready access. Her job was to type data from court papers into a computer that maintained an automated record of the status of civil process in the county. Her training consisted of two days of instruction in the operation of her computer terminal.
On March 30, 1981, McPherson and some fellow employees heard on an office radio that there had been an attempt to assassinate the President of the United States. Upon hearing that report, McPherson engaged a co-worker, Lawrence Jackson, who was apparently her boyfriend, in a brief conversation, which according to McPherson’s uncontroverted testimony went as follows:
“Q: What did you say?
“A: I said I felt that that would happen sooner or later.
“Q: Okay. And what did Lawrence say?
“A: Lawrence said, yeah, agreeing with me.
“Q: Okay. Now, when you — after Lawrence spoke, then what was your next comment?
“A: Well, we were talking — it’s a wonder why they did that. I felt like it would be a black person that did that, because I feel like most of my kind is on welfare and CETA, and they use medicaid, and at the time, I was thinking that’s what it was.
“. . . But then after I said that, and then Lawrence said, yeah, he’s cutting back medicaid and food stamps. And I said, yeah, welfare and CETA. I said, shoot, if they go for him again, I hope they get him.”
McPherson’s last remark was overheard by another Deputy Constable, who, unbeknownst to McPherson, was in the room at the time. The remark was reported to Constable Rankin, who summoned McPherson. McPherson readily admitted that she had made the statement, but testified that she told Rankin, upon being asked if she made the statement, “Yes, but I didn’t mean anything by it.” App. 38. After their discussion, Rankin fired McPherson.
McPherson brought suit in the United States District Court for the Southern District of Texas under 42 U. S. C. § 1983, alleging that petitioner Rankin, in discharging her, had violated her constitutional rights under color of state law. She sought reinstatement, backpay, costs and fees, and other equitable relief. The District Court held a hearing, and then granted summary judgment to Constable Rankin, holding that McPherson’s speech had been unprotected and that her discharge had therefore been proper. Civ. Action No. H-81-1442 (Apr. 15, 1983). The Court of Appeals for the Fifth Circuit vacated and remanded for trial, 736 F. 2d 175 (1984), on the ground that substantial issues of material fact regarding the context in which the statement had been made precluded the entry of summary judgment. Id., at 180.
On remand, the District Court held another hearing and ruled once again, this time from the bench, that the statements were not protected speech. App. 120. Again, the Court of Appeals reversed. 786 F. 2d 1233 (1986). It held that McPherson’s remark had addressed a matter of public concern, requiring that society’s interest in McPherson’s freedom of speech be weighed against her employer’s interest in maintaining efficiency and discipline in the workplace. Id., at 1236. Performing that balancing, the Court of Appeals concluded that the Government’s interest did not outweigh the First Amendment interest in protecting McPherson’s speech. Given the nature of McPherson’s job and the fact that she was not a law enforcement officer, was not brought by virtue of her job into contact with the public, and did not have access to sensitive information, the Court of Appeals deemed her “duties ... so utterly ministerial and her potential for undermining the office’s mission so trivial” as to forbid her dismissal for expression of her political opinions. Id., at 1239. “However ill-considered Ardith McPherson’s opinion was,” the Court of Appeals concluded, “it did not make her unfit” for the job she held in Constable Rankin’s office. Ibid. The Court of Appeals remanded the case for determination of an appropriate remedy.
We granted certiorari, 479 U. S. 913 (1986), and now affirm.
II
It is clearly established that a State may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech. Perry v. Sindermann, 408 U. S. 593, 597 (1972). Even though McPherson was merely a probationary employee, and even if she could have been discharged for any reason or for no reason at all, she may nonetheless be entitled to reinstatement if she was discharged for exercising her constitutional right to freedom of expression. See Mt. Healthy City Board of Education v. Doyle, 429 U. S. 274, 284-285 (1977); Perry v. Sindermann, supra, at 597-598.
The determination whether a public employer has properly discharged an employee for engaging in speech requires “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education, 391 U. S. 563, 568 (1968); Connick v. Myers, 461 U. S. 138, 140 (1983). This balancing is necessary in order to accommodate the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment. On the one hand, public employers are employers, concerned with the efficient function of their operations; review of every personnel decision made by a public employer could, in the long run, hamper the performance of public functions. On the other hand, “the threat of dismissal from public employment is ... a potent means of inhibiting speech.” Pickering, supra, at 574. Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.
A
The threshold question in applying this balancing test is whether McPherson’s speech may be “fairly characterized as constituting speech on a matter of public concern.” Connick, 461 U. S., at 146. “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Id., at 147-148. The District Court apparently found that McPherson’s speech did not address a matter of public concern. The Court of Appeals rejected this conclusion, finding that “the life and death of the President are obviously matters of public concern.” 786 F. 2d, at 1236. Our view of these determinations of the courts below is limited in this context by our constitutional obligation to assure that the record supports this conclusion: “ ‘[W]e are compelled to examine for ourselves the statements in issue and the circumstances under which they [were] made to see whether or not they . . . are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.’” Connick, supra, at 150, n. 10, quoting Pennekamp v. Florida, 328 U. S. 331, 335 (1946) (footnote omitted).
Considering the statement in context, as Connick requires, discloses that it plainly dealt with a matter of public concern. The statement was made in the course of a conversation addressing the policies of the President’s administration. It came on the heels of a news bulletin regarding what is certainly a matter of heightened public attention: an attempt on the life of the President. . While a statement that amounted to a threat to kill the President would not be protected by the First Amendment, the District Court concluded, and we agree, that McPherson’s statement did not amount to a threat punishable under 18 U. S. C. § 871(a) or 18 U. S. C. § 2385, or, indeed, that could properly be criminalized at all. See 786 F. 2d, at 1235 (“A state would . . . face considerable constitutional obstacles if it sought to criminalize the words that were uttered by McPherson on the day the President was shot”); see also Brief for United States as Amicus Curiae 8 (“[W]e do not think that respondent’s remark could be criminalized”); cf. Watts v. United States, 394 U. S. 705 (1969) (per curiam). The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. “[DJebate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964); see also Bond v. Floyd, 385 U. S. 116, 136 (1966): “Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected.”
B
Because McPherson’s statement addressed a matter of public concern, Pickering next requires that we balance McPherson’s interest in making her statement against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U. S., at 568. The State bears a burden of justifying the discharge on legitimate grounds. Connick, 461 U. S., at 150.
In performing the balancing, the statement will not be considered in a vacuum; the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose. See id., at 152-153; Givhan v. Western Line Consolidated School Dist., 439 U. S. 410, 415, n. 4 (1979). We have previously recognized as pertinent considerations whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise. Pickering, 391 U. S., at 570-573.
These considerations, and indeed the very nature of the balancing test, make apparent that the state interest element of the test focuses on the effective functioning of the public employer’s enterprise. Interference with work, personnel relationships, or the speaker’s job performance can detract from the public employer’s function; avoiding such interference can be a strong state interest. From this perspective, however, petitioners fail to demonstrate a state interest that outweighs McPherson’s First Amendment rights. While McPherson’s statement was made at the workplace, there is no evidence that it interfered with the efficient functioning of the office. The Constable was evidently not afraid that McPherson had disturbed or interrupted other employees — he did not inquire to whom respondent had made the remark and testified that he “was not concerned who she had made it to,” Tr. 42. In fact, Constable Rankin testified that the possibility of interference with the functions of the -Constable’s office had not been a consideration in his discharge of respondent and that he did not even inquire whether the remark had disrupted the work of the office.
Nor was there any danger that McPherson had discredited the office by making her statement in public. McPherson’s speech took place in an area to which there was ordinarily no public access; her remark was evidently made in a private conversation with another employee. There is no suggestion that any member of the general public was present or heard McPherson’s statement. Nor is there any evidence that employees other than Jackson who worked in the room even heard the remark. Not only was McPherson’s discharge unrelated to the functioning of the office, it was not based on any assessment by the Constable that the remark demonstrated a character trait that made respondent unfit to perform her work.
While the facts underlying Rankin’s discharge of McPherson are, despite extensive proceedings in the District Court, still somewhat unclear, it is undisputed that he fired McPherson based on the content of her speech. Evidently because McPherson had made the statement, and because the Constable believed that she “meant it,” he decided that she was not a suitable employee to have in a law enforcement agency. But in weighing the State’s interest in discharging an employee based on any claim that the content of a statement made by the employee somehow undermines the mission of the public employer, some attention must be paid to the responsibilities of the employee within the agency. The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails. Where, as here, an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful functioning from that employee’s private speech is minimal. We cannot believe that every employee in Constable Rankin’s office, whether computer operator, electrician, or file clerk, is equally required, on pain of discharge, to avoid any statement susceptible of being interpreted by the Constable as an indication that the employee may be unworthy of employment in his law enforcement agency. At some point, such concerns are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.
This is such a case. McPherson’s employment-related interaction with the Constable was apparently negligible. Her duties were purely clerical and were limited solely to the civil process function of the Constable’s office. There is no indication that she would ever be in a position to further— or indeed to have any involvement with — the minimal law enforcement activity engaged in by the Constable’s office. Given the function of the agency, McPherson’s position in the office, and the nature of her statement, we are not persuaded that Rankin’s interest in discharging her outweighed her rights under the First Amendment.
Because we agree with the Court of Appeals that McPherson’s discharge was improper, the judgment of the Court of Appeals is
Affirmed.
While the Constable’s office is a law enforcement agency, Constable Rankin testified that other law enforcement departments were charged with the day-to-day enforcement of criminal laws in the county, Tr. (Jan. 21, 1985), pp. 11, 27 (hereinafter Tr.), and that more than 80% of the budget of his office was devoted to service of civil process, service of process in juvenile delinquency cases, and execution of mental health warrants. Id., at 15-17. The involvement of his office in criminal cases, he testified, was in large part limited to warrants in bad check cases. Id., at 24 (“Most of our percentage is with civil papers and hot check warrants”).
In order to serve as a commissioned peace officer, as the Court of Appeals noted, a deputy would have to undergo a background cheek, a psychological examination, and over 300 hours of training in law enforcement. 786 F. 2d 1233, 1237 (CA5 1986). Constable Rankin testified that while his office had on occasion been asked to guard various dignitaries visiting Houston, Tr. 24, a deputy who was not a commissioned peace officer would never be assigned to such duty, id., at 30. Nor would such a deputy even be assigned to serve process. Id., at 32.
Tr. 73. In its first order in this case, the District Court found that McPherson’s statement had been, “ ‘I hope if they go for him again, they get him.’” Civ. Action No. H-81-1442 (Apr. 15, 1983). In its second decision, the District Court made no explicit finding as to what was said. McPherson’s testimony, as reproduced in the text, is only slightly different from the District Court’s version, and the distinction is not significant.
Rankin testified that, when he asked McPherson whether she meant the remark, she replied, “I sure do.” App. 38. In neither of its opinions in this ease did the District Court make an explicit finding regarding which version of this conflicting testimony it found credible. See also 736 F. 2d 175, 177, and n. 3 (CA5 1984).
We note that the question whether McPherson “meant” the statement is ambiguous. Assuming that McPherson told Rankin she “meant it,” McPherson might think she had said that she “meant” that she disliked the President and would not mind if he were dead, while Rankin might believe that McPherson “meant” to indicate approval of, or in any event hope for, political assassination. This ambiguity makes evident the need for carefully conducted hearings and precise and complete findings of fact.
McPherson evidently returned to the office the next day seeking an interview with the Constable, but Rankin refused to see her.
Because the District Court entered summary judgment after the first hearing, we must conclude that it did not, in its April 15 ruling, resolve any disputed issues of material fact. We have considered the District Court’s findings of fact made after this hearing only to the extent they address what appear to be undisputed factual issues.
Even where a public employee’s speech does not touch upon a matter of public concern, that speech is not “totally beyond the protection of the First Amendment,” Connick v. Myers, 461 U. S., at 147, but “absent the most unusual circumstances a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Ibid.
The District Court, after its second hearing in this case, delivered its opinion from the bench and did not explicitly address the elements of the required balancing test. It did, however, state that the ease was “not like the Myers case where Ms. Myers was trying to comment upon the internal affairs of the office, or matters upon public concern. I don’t think it is a matter of public concern to approve even more to [sic] the second attempt at assassination.” App. 119.
The dissent accuses us of distorting and beclouding the record, evidently because we have failed to accord adequate deference to the purported “findings” of the District Court. Post, at 396. We find the District Court’s “findings” from the bench significantly more ambiguous than does the dissent:
“Then I suppose we get down to the serious question, what did she ‘mean.’ I don’t believe she meant nothing, as she said here today, and I don’t believe that those words were mere political hyperbole. They were something more than political hyperbole. They expressed such dislike of a high public government official as to be violent words, in context. This is not the situation where one makes an idle threat to kill someone for not picking them up on time, or not picking up their clothes. It was more than that.
“It’s not like the Myers case where Ms. Myers was trying to comment upon the internal affairs of the office, or matters upon public concern. I don’t think it is a matter of public concern to [sic] approve even more to the second attempt at assassination.” App. 119.
The District Court’s sole affirmative “finding” here, that McPherson’s statement constituted “violent words, in context,” is unintelligible in First Amendment terms. Even assuming that the District Court can be viewed to have made any findings of fact on the public concern issue, it is unclear to what extent that issue presents a question of fact at all. In addition, the dissent fails to acknowledge that any factual findings subsumed in the “public concern” determination are subject to constitutional fact review. See also 786 F. 2d, at 1237.
See also Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (1984) (“[I]n eases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression,’” quoting New York Times Co. v. Sullivan, 376 U. S. 254, 284-286 (1964)). The ultimate issue — whether the speech is protected — is a question of law. Connick, supra, at 148, n. 7.
McPherson actually made the statement at issue not once, but twice, and only in the first instance did she make the statement in the context of a discussion of the President’s policies. McPherson repeated the statement to Constable Rankin at his request. We do not consider the second statement independently of the first, however. Having been required by the Constable to repeat her statement, McPherson might well have been deemed insubordinate had she refused. A public employer may not divorce a statement made by an employee from its context by requiring the employee to repeat the statement, and use that statement standing alone as the basis for a discharge. Such a tactic could in some cases merely give the employee the choice of being fired for failing to follow orders or for making a statement which, out of context, may not warrant the same level of First Amendment protection it merited when originally made.
The private nature of the statement does not, contrary to the suggestion of the United States, Brief for United States as Amicus Curiae 18, vitiate the status of the statement as addressing a matter of public concern. See Givhan v. Western Line Consolidated School Dist., 439 U. S. 410, 414-416 (1979).
Constable Rankin was evidently unsure of this; he testified that he called the Secret Service to report the incident and suggest that they investigate McPherson. Tr. 44. McPherson testified that the Secret Service did, in fact, come to her home:
“Oh, they told me that they thought it was a prank call, but. . . they have to investigate any call that they get.
“. . . When they left, they told my mama and me that they were sorry. They said that they knew it was a prank call, they just have to come out and investigate. They said that’s the procedure.” Id., at 81-82.
We agree with Justice Powell that a purely private statement on a matter of public concern will rarely, if ever, justify discharge of a public employee. Post, at 393. To the extent petitioners’ claim that McPherson’s speech rendered her an unsuitable employee for a law enforcement agency implicates a serious state interest and necessitates the application of the balancing element of the Pickering analysis, we proceed to that task.
He testified: “I did not base my action on whether the work was interrupted or not. I based my action on a statement that was made to me direct.” Tr. 45.
In response to a question from the bench, counsel at oral argument before this Court expressly denied that this was the motive for the Constable’s discharge of McPherson:
“QUESTION: . . . [Sluppose when she was called in by the constable and asked whether she had said that, she said, ‘Yes, I said it.’
“MR. LEE [counsel for petitioners]: She was, Your Honor. She was called in by the constable.
“QUESTION: I know. Now, suppose she had said, ‘Yeah, I said it, but, you know, I didn’t really mean anything by it.’
“MR. LEE: Yes, sir.
“QUESTION: Do we know whether she would have been fired? I mean, conceivably you might fire her anyway. I mean, he might have said, “Well, you know, you shouldn’t talk like that, whether you mean it or not. I don’t want that kind of talk in my law enforcement agency, whether you mean it or not. It shows poor judgment, and you’re fired.’
“Was that the basis for his dismissal?
“MR. LEE: Your Honor, I would say not, based upon two trials that we have been through in the District Court.” Tr. of Oral Arg. 10-11.
Rankin’s assertion, as evidently credited by the District Court after its first hearing, was that he discharged respondent because her statement undermined his “confidence” in her. App. 42-43. After its second hearing, the District Court did not state clearly what it concluded the motive for respondent’s discharge to be. Petitioners’ counsel, at oral argument, suggested that McPherson was discharged because she hoped that the President would be assassinated. Tr. of Oral Arg. 11-13. The Court of Appeals similarly classified the District Court’s finding. See 786 F. 2d, at 1237 (“For the purpose of applying the Pickering/Connick balancing test, we accept the district court’s conclusion that McPherson actually hoped that the President would be assassinated”). We are not persuaded that the Court of Appeals has properly divined the meaning of the District Court’s findings, but, even accepting the Court of Appeals’ view, we agree with the Court of Appeals that the speech was protected.
We therefore reject the notion, expressed by petitioners’ counsel at oral argument, that the fact that an employee was deputized meant, regardless of that employee’s job responsibility, that the Constable could discharge the employee for any expression inconsistent with the goals of a law enforcement agency.
“MR. LEE [counsel for petitioners]: The man who sweeps the floor in the constable’s office is not employed by the constable. He’s employed by commissioners’ court who takes care of all of the courthouses.” Tr. of Oral Arg. 6.
“QUESTION: I guess it’s a lucky thing then that the constable is not himself responsible for keeping the courthouse clean, which could have been the case. I mean, you—
“MR. LEE: Which could have been the case, yes, sir. That is right, because he would then—
“QUESTION: Then your argument would indeed extend to the man who swept the floor; right?
“QUESTION: And you would be making the same argument here—
“MR. LEE: Yes, sir.
“QUESTION: —because that man had the name of deputy?
“MR. LEE: That’s right.” Id., at 8.
This is not to say that clerical employees are insulated from discharge where their speech, taking the acknowledged factors into account, truly injures the public interest in the effective functioning of the public employer. Cf. McMullen v. Carson, 754 F. 2d 936 (CA11 1985) (clerical employee in sheriff’s office properly discharged for stating on television news that he was an employee for the sheriff’s office and a recruiter for the Ku Klux Klan).
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:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
NATIONAL BROILER MARKETING ASSN. v. UNITED STATES
No. 77-117.
Argued February 21, 1978 —
Decided June 12, 1978
Blackmun, J., delivered the opinion of the Court, in which Burgee, C. J., and BreNnaN, Marshall, Powell, Rehnquist, and Stevens, JJ., joined. BreNNAN, J.,, filed a concurring opinion, post, p. 829. White, J., filed a dissenting opinion, in which Stewart, J., joined, post, p. 840.
Richard A. Posner argued the cause for petitioner. With him on the briefs were Michael A. Doyle and Frederick H. Von Unwerth.
Assistant Attorney General Shenefield argued the cause for the United States. With on the brief were Solicitor General McCree, Frank H. Easterbrook, John J. Powers III, and Bruce E. Fein.
A brief of amici curiae urging affirmance was filed for their respective States by William J. Baxley, Attorney General of Alabama; Carl R. Ajello, Attorney General of Connecticut; John D. MacFarlane, Attorney General of Colorado; Robert L. Shevin, Attorney General of Florida; William J. Scott, Attorney General of Illinois; Robert F. Stephens, Attorney General of Kentucky; Francis X. Bellotti, Attorney General of Massachusetts; Frank J. Kelley, Attorney General of Michigan; William F. Hyland, Attorney General of New Jersey; William J. Brown, Attorney General of Ohio; Robert P. Kane, Attorney General of Pennsylvania; Richard C. Turner, Attorney General of Iowa; William J. Guste, Jr., Attorney General of Louisiana; John D. Ashcrojt, Attorney General of Missouri; Louis J. Lefkowitz, Attorney General of New York; Larry Derryberry, Attorney General of Oklahoma; James A. Redden, Attorney General of Oregon; Julius C. Michaelson, Attorney General of Rhode Island; and Marshall Coleman, Attorney General of Virginia, joined by Emmet Bondurant, David I. Shapiro, and James vanR. Springer. Allen A. Lauterbach filed a brief for the American Farm Bureau Federation as amicus curiae urging affirmance.
Mr. Justice Blackmun
delivered the opinion of the Court.
Once again, this time in an antitrust context, the Court is confronted with an issue concerning integrated poultry operations. Petitioner phrases the issue substantially as follows:
Is a producer of broiler chickens precluded from qualifying as a “farmer,” within the meaning of the Capper-Volstead Act, when it employs an independent contractor to tend the chickens during the “grow-out” phase from chick to mature chicken?
The issue apparently is of importance to the broiler industry and in the administration of the antitrust laws.
I
In April 1973, in the United States District Court for the Northern District of Georgia, the United States brought suit against petitioner National Broiler Marketing Association (NBMA). It alleged that NBMA had conspired with others not named, but including members of NBMA, in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1 (1976 ed.). It prayed for injunctive relief and that NBMA “be ordered to make whatever changes are necessary in its organization and operation to insure compliance with the judgment” of the court. Record 10. In its answer NBMA alleged, among other things, that its status, as a cooperative association of persons engaged in the production of agricultural products, sheltered it from antitrust liability for the acts alleged, under § 1 of the Capper-Volstead Act, also known as the Cooperative Marketing Associations Act, 42 Stat. 388, 7 U. S. C. §291 (1976 ed.).
On motion and cross-motion for partial summary judgment, the District Court concluded that the involvement of all the members of NBMA in the production of broiler chickens was sufficient to justify their classification as “farmers,” within the meaning of the Act, and that NBMA therefore was a cooperative entitled to the limited exemption from the antitrust laws the Act afforded. 1975-2 Trade Cases ¶ 60,509.
On appeal, the United States Court of Appeals for the Fifth Circuit reversed. It held that all the NBMA members were not farmers in the ordinary, popular meaning of that word and as it was employed in. 1922 when the Capper-Volstead Act became law. 550 F. 2d 1380 (1977). Because of the importance of the issue for the agricultural community and for the administration of the antitrust laws, we granted certiorari. 434 U. S. 888 (1977).
II
NBMA is a nonprofit cooperative association organized in 1970 under Georgia law. It performs various cooperative marketing and purchasing functions on behalf of its members. App. 7. Its membership has varied somewhat during the course of this litigation, but apparently it has included as many as 75 separate entities. Id., at 172.
These members are all involved in the production and marketing of broiler chickens. Production involves a number of distinct stages: the placement, raising, and breeding of breeder flocks to produce eggs to be hatched as broiler chicks; the hatching of the eggs and placement of those chicks; the production of feed for the chicks; the raising of the broiler chicks for a period, not to exceed, apparently, 10 weeks; the catching, cooping, and hauling of the “grown-out” broiler chickens to processing facilities; and the operation of facilities to process and prepare the broilers for market. Id., at 7.
The broiler industry has become highly efficient and departmentalized in recent years, and stages of production that in the past might all have been performed by one enterprise may now be split and divided among several, each with a highly specialized function. No longer are eggs necessarily hatched where they are laid, and chicks are not necessarily raised where they are hatched. Conversely, some stages that in the past might have been performed by different persons or enterprises are now combined and controlled by a single entity. Also, the owner of a breeder flock may own a processing plant.
All the members of NBMA are “integrated,” that is, they are involved in more than one of these stages of production. Many, if not all, directly or indirectly own and operate a processing plant where the broilers are slaughtered and dressed for market. All contract with independent growers for the raising or grow-out of at least part, and usually a substantial part, of their flocks. Id., at 8. Often the chicks placed with an independent grower have been hatched in the member’s hatchery from eggs produced by the member’s breeder flocks. The member then places its chicks with the independent grower for the grow-out period, provides the grower with feed, veterinary service, and necessary supplies, and, with its own employees, usually collects the mature chickens from the grower. Generally, the member retains title to the birds while they are in the care of the independent grower. Ibid.
It is established, however, ibid.; Brief for Petitioner 5 n. 2, that six NBMA members do not own or control any breeder flock whose offspring are raised as broilers, and do not own or control any hatchery where the broiler chicks are hatched. And it appears from the record that three members do not own a breeder flock or hatchery, and also do not maintain any grow-out facility. These members, who buy chicks already hatched and then place them with growers, enter the production line only at its later processing stages.
Ill
The Capper-Yolstead Act removed from the proscription of the antitrust laws cooperatives formed by certain agricultural producers that otherwise would be directly competing with each other in efforts to bring their goods to market. But if the cooperative includes among its members those not so privileged under the statute to act collectively, it is not entitled to the protection of the Act. Case-Swayne Co. v. Sunkist Growers, Inc., 389 U. S. 384 (1967). Thus, in order for NBMA to enjoy the limited exemption of the Capper-Volstead Act, and, as a consequence, to avoid liability under the antitrust laws for its collective activity, all its members must be qualified to act collectively. It is not enough that a typical member qualify, or even that most of NBMA’s members qualify. We therefore must determine not whether the typical integrated broiler producer is qualified under the Act but whether all the integrated producers who are members of NBMA are entitled to the Act’s protection.
The Act protects “[p'Jersons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers” (emphasis added). A common-sense reading of this language clearly leads one to conclude that not all persons engaged in the production of agricultural products are entitled to join together and to obtain and enjoy the Act’s benefits! The italicized phrase restricts and limits the broader preceding phrase “[pjersons engaged in the production of agricultural products . . . .”
The purposes of the Act, as revealed by the legislative history, confirm the conclusion that not all those involved in bringing agricultural products to market may join cooperatives exempt under the statute, and have the cooperatives retain that exemption. The Act was passed in 1922 to remove the threat of antitrust restrictions on certain kinds of collective activity, including processing and handling, undertaken by certain persons engaged in agricultural production. Similar organizations of those engaged in farming, as well as organizations of laborers, were already entitled, since 1914, to special treatment under § 6 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 17 (1976 ed.). This treatment, however, had proved to be inadequate. Only nonstock organizations were exempt under the Clayton Act, but various agricultural groups had discovered that, in order best to serve the needs of their members, accumulation of capital was required. With capital, cooperative associations could develop and provide the handling and processing services that were needed before their members’ products could be sold. The Capper-Yolstead Act was passed to make it clear that the formation of an agricultural organization with capital would not result in a violation of the antitrust laws, and that the organization, without antitrust consequences, could perform certain functions in preparing produce for market. Mr. Justice Black summarized this legislative history in his opinion for a unanimous Court in Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458, 464-468 (1960), and it is further discussed in Case-Swayne, 389 U. S., at 391.
Farmers were perceived to be in a particularly harsh economic position. They were subject to the vagaries of market conditions that plague agriculture generally, and they had no means individually of responding to those conditions. Often the farmer had little choice about who his buyer would be and when he would sell. A large portion of an entire year’s labor devoted to the production of a crop could be lost if the farmer were forced to bring his harvest to market at an unfavorable time. New farmers, however, so long as they could act only individually, had sufficient economic power to wait out an unfavorable situation. Farmers were seen as being caught in the hands of processors and distributors who, because of their position in the market and their relative economic strength, were able to take from the farmer a good share of whatever profits might be available from agricultural production. By allowing farmers to join together in cooperatives, Congress hoped to bolster their market strength and to improve their ability to weather adverse economic periods and to deal with processors and distributors.
NBMA argues that this history demonstrates that the Act was meant to protect all those that must bear the costs and risks of a fluctuating market, and that all its members, because they are exposed to those costs and risks and must make decisions affected thereby, are eligible to organize in exempt cooperative associations. The legislative history indicates, however, and does it clearly, that it is not simply exposure to those costs and risks, but the inability of the individual farmer to respond effectively, that led to the passage of the Act. The congressional debates demonstrate that the Act was meant to aid not the full spectrum of the agricultural sector but, instead, to aid only those whose economic position rendered them comparatively helpless. It was, very definitely, special-interest legislation. Indeed, several attempts were made to amend the Act to include certain processors who, according to preplanting contracts, paid growers amounts based on the market price of processed goods; these attempts were roundly rejected. Clearly, Congress did not intend to extend the benefits of the Act to the processors and packers to whom the farmers sold their goods, even when the relationship was such that the processor and packer bore a part of the risk.
Petitioner suggests that agriculture has changed since 1922, when the Act was passed, and that an adverse decision here “might simply accelerate an existing trend toward the absorption of the contract grower by the integrator,” or “might induce the integrators to rewrite their contracts with the contract growers to designate the latter as lessor-employees rather than independent contractors.” Brief for Petitioner 13; see id., at 24, 26, and Tr. of Oral Arg. 17. We may accept the proposition that agriculture has changed in the intervening 55 years, but, as the second Mr. Justice Harlan said, when speaking for the Court in another context, a statute “is not an empty vessel into which this Court is free to pour a vintage that we think better suits present-day tastes.” United States v. Sisson, 399 U. S. 267, 297 (1970). Considerations of this kind are for the Congress, not the courts.
IV
We, therefore, conclude that any member of NBMA that owns neither a breeder flock nor a hatchery, and that maintains no grow-out facility at which the flocks to which it holds title are raised, is not among those Congress intended to protect by the Capper-Volstead Act. The economic role of such a member in the production of broiler chickens is indistinguishable from that of the processor that enters into a preplanting contract with its supplier, or from that of a packer that assists its supplier in the financing of his crops. Their participation involves only the kind of investment that Congress clearly did not intend to protect. We hold that such members are not “farmers,” as that term is used in the Act, and that a cooperative organization that includes them — or even one of them — as members is not entitled to the limited protection of the Capper-Yolstead Act.
The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings.
It is so ordered.
See Bayside Enterprises, Inc. v. NLRB, 429 U. S. 298 (1977).
The Court of Appeals described the issue in this manner:
“We must decide whether broiler industry companies that neither own nor operate farms can be 'farmers’ within the meaning of a 1922 federal statute called the Capper-Volstead Act, which gives farmers’ cooperatives some measure of protection from the antitrust laws” (footnote omitted). 550 F. 2d 1380, 1381 (CA5 1977).
Nineteen States have filed a brief amicus curiae and assert interests as antitrust litigants. See In re Chicken Antitrust Litigation, M. D. L. No. 237, ND Ga. No. C74r-2454A. See also Brown, United States v. National Broiler Marketing Association: Will the Chicken Lickin’ Stand?, 56 N. C. L. Rev. 29 (1978); Department of Agriculture, Farmer Cooperative Service, Legal Phases of Farmer Cooperatives (1976); Note, Trust Busting Down on the Farm: Narrowing the Scope of Antitrust Exemptions for Agricultural Cooperatives, 61 Va. L. Rev. 341 (1975).
Section 1 of the Capper-Yolstead Act provides in pertinent part:
“Persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit .growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes . . .
The statute further provides that any such association must be operated for the mutual benefit of its members; that it may not pay dividends of more than 8% annually on its stock or membership capital; and that it “shall not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members.” Section 2 of the Act, 7 U. S. C. §292 (1976 ed.), provides for certain regulation of the association by the Secretary of Agriculture.
In order to facilitate the appeal, the United States, after the District Court’s decision, amended the complaint to limit its allegations of conspiracy to the members of NBMA. App. 94r-95. This was done without prejudice to any later renewal of allegations abandoned by the amendment. Id., at 91. Noting that the United States did not dispute that if NBMA were a qualified cooperative, the exemption afforded by the Capper-Volstead Act provided a complete defense to the amended complaint, and restating its conclusion that NBMA’s members were entitled to join in a cooperative under the Act, the District Court dismissed the amended complaint with prejudice. Id., at 105-108; 1976-1 Trade Cases ¶ 60,801.
Georgia Cooperative Marketing Act, Ga. Code § 65-201 et seq. (1975). The Act authorizes cooperative associations of “persons engaged in the production of . . . agricultural products.” § 65-205. When first organized, NBMA was chartered as a cooperative association with capital stock. In December 1973, after the complaint in this suit had been filed, its articles of incorporation were amended to authorize the cancellation of its capital stock and the conversion of the association to a nonprofit membership cooperative association not having stock. App. 6.
There is no suggestion by the parties that this change in organization in any way affects the issue presented in the case.
The record includes more specific but nevertheless limited references to NBMA’s activities. It has been involved in the purchasing of feed ingredients and of other specialized products used by its members in raising broilers and preparing them for market, in market research and planning, and in conducting a foreign trade sales program. Id., at 137-139. The full range of NBMA’s activities may well be put in issue on remand.
Broilers are chickens that a.re slaughtered at 7 to 9 (or 8 to 10) weeks of age and processed for sale to supermarkets, restaurants, hotels and other institutions. Id., at 8, 93, 98. The United States has conceded that, for the purposes of this litigation, a broiler chicken is an agricultural product. Id., at 7.
Compare, for example, Department of Agriculture, Agricultural Adjustment Administration, W. Termohlen, J. Kinghorne, & E. Warren, An Economic Survey of the Commercial Broiler Industry (1936), with V. Benson & T. Witzig, The Chicken Broiler Industry: Structure, Practices, and Costs (Dept, of Agriculture, Economic Rep. No. 381, 1977). See generally E. Roy, Contract Farming and Economic Integration, ch. 4, “Broiler Chickens” (2d ed. 1972); Department of Agriculture, Packers and Stockyards Administration, The Broiler Industry: An Economic Study of Structure, Practices and Problems (1967); Ohio Agricultural Research and Development Center, B. Marion & H. Arthur, Dynamic Factors in Vertical Commodity Systems: A Case Study of the Broiler System (1973).
See Table G-1, and the data as to Members 2, 3, and 20, attached to affidavit of I. R. Barnes, submitted by petitioner and accepted as to accuracy by the United States. Record 467; App. 187-188.
The Act does not remove from the general operation 'of the antitrust laws the deahngs of such cooperatives with others. United States v. Borden Co., 308 U. S. 188, 203-205 (1939).
See Malat v. Riddell, 383 U. S. 669, 571 (1966); Addison v. Holly Hill Fruit Products, Inc., 322 U. S. 607, 618 (1944).
The report on the bill that became the Act stressed that the limitations on “the kind of associations to which the legislation applies” were “aimed to exclude from the benefits of this legislation all but actual farmers and all associations not operated for the mutual help of their members as such producers.” H. R. Rep. No. 24, 67th Cong., 1st Sess., 1 (1921). See also H. R. Rep. No. 939, 66th Cong., 2nd Sess., 1 (1920).
Senator Kellogg, a supporter of the bill, read this language to have a restrictive meaning:
“Mr. CUMMINS .... Are the words 'as farmers, planters, ranch-men, dairymen, nut or fruit growers’ used to exclude all others who may be engaged in the production of agricultural products, or are those words merely descriptive of the general subject?
“Mr. KELLOGG. I think they are descriptive of the general subject. I think 'farmers’ would have covered them all.
“Mr. CUMMINS. I think the Senator does not exactly catch my point. Take the flouring mills of Minneapolis: They are engaged, in a broad sense, in the production of an agricultural product. The packers are engaged, in a broad sense, in the production of an agricultural product. The Senator does not intend by this bill to confer upon them the privileges which the bill grants, I assume?
“Mr. KELLOGG. Certainly not; and I do not think a proper construction of the bill grants them any such privileges. The bill covers farmers, people who produce farm products of all kinds, and out of precaution the descriptive words were added.
“Mr. TOWNSEND. They must be persons who produce these things.
“Mr. KELLOGG. Yes; that has always been the understanding.” 62 Cong. Rec. 2052 (1922).
Section 6 of the Clayton Act reads:
“The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.”
See also, e. g., 59 Cong. Rec. 7851-7852 (1920) (remarks of Rep. Morgan.); id., at 8017 (remarks of Rep. Volstead). See generally Ballan-tine, Co-operative Marketing Associations, 8 Minn. L. Rev. 1 (1923) ; L. Hulbert, Legal Phases of Cooperative Associations 43-47 (Department of Agriculture Bull. No. 1106,1922).
The Court specifically has acknowledged the relationship of the exemption for labor unions and that for farm cooperatives:
“These large sections of the population — those who labored with their hands and those who worked the soil — were as a matter of economic fact in a different relation to the community from that occupied by industrial combinations. Farmers were widely scattered and inured to habits of individualism; their economic fate was in large measure dependent upon contingencies beyond their control.” Tigner v. Texas, 310 U. S. 141, 145 (1940).
See also Liberty Warehouse Co. v. Tobacco Growers, 276 U. S. 71, 92-93 (1928); Frost v. Corporation Comm’n, 278 U. S. 515, 538-543 (1929) (Brandéis, J., dissenting).
See, e. g., 59 Cong. Rec. 8025 (1920) (remarks of Rep. Hersman); id., at 9154 (extended remarks of Rep. Michener); 61 Cong. Rec. 1040 (1921) (remarks of Rep. Towner); 62 Cong. Rec. 2048-2049 (1922) (remarks of Sen. Kellogg); id., at 2058 (remarks of Sen. Capper).
Essentially the same argument was made and rejected by the Court in Case-Swayne Co. v. Sunkist Growers, Inc., 389 U. S. 384, 393-396 (1967), in which it concluded that a cooperative of orange growers, which included some members who operated packing houses but grew no fruit, was not entitled to the protection of the Act.
NBMA asserts that the integrator bears 90%, or more, of broiler production costs, as compared with the grower’s 10%, or less. Tr. of Oral Arg. 13; Brief for Petitioner 16, 21.
This amendment, repeatedly introduced by Senator Phipps, would have inserted the following language after “nut or fruit growers” (see n. 4, supra):
“and where any such agricultural product or products must be submitted to a manufacturing process, in order to convert it or them into a finished commodity, and the price paid by the manufacturer to the producer thereof is controlled by or dependent upon the price received by the manufacturer for the finished commodity by contract entered into before the production of such agricultural product or products, then any such manufacturers.” 62 Cong. Ree. 2227,2273-2275, 2281 (1922).
The dissent suggests, post, at 849, that petitioner’s members “partake in substantially all of the risks of bringing a crop . . . from ohick to broiler.” Although it is true that petitioner’s members bear some of the risks associated with bringing each flock to market, they do not bear all the risks. Growers dealing with many of petitioner’s members, including M2, M3, and probably M20, receive no payment for their labor if a flock is lost due, in some cases, to the weather, and in other cases, to disease. See Table G-2, App. 195. And, perhaps more importantly, petitioner’s members do not bear all the risks associated with changes in demand over a longer period of time. Very few of petitioner’s members, not including M2 or M3, provide the growers with whom they deal anything more than “informal assurances” that the member will continue to place flocks with the grower and therefore that the grower will receive a return on the investment he has in his grow-out facilities. See Table G-7, App. 219.
Because we conclude that these members have not made the kind of investment that would entitle them to the protection of the Act, we need not consider whether, even if they had, they would be ineligible for the protection of the Act because their economic position is such that they are not helplessly exposed to the risks about which Congress was concerned. Thus we need not consider here the status under the Act of the fully integrated producer that not only maintains its own breeder flock, hatchery, and grow-out facility, but also runs its own processing plant. Neither'do we consider the status of the less fully integrated producer that, although maintaining a grow-out facility, also contracts with independent growers for a large portion of the broilers processed at its facility.
There is nothing in the record that would allow us to consider whether these integrators are “too small” to own their own breeder flocks, hatcheries, or grow-out facilities, or whether, because of the history of their economic development, they have concentrated only on the feed production and processing aspects of broiler production.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_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".
UNITED STATES of America, Plaintiff-Appellee, v. Laura TROMBLEY, Defendant-Appellant.
No. 83-1492.
United States Court of Appeals, Sixth Circuit.
Argued March 15, 1984.
Decided April 25, 1984.
See also, D.C., 563 F.Supp. 564.
Gershwin A. Drain, Kenneth R. Sasse, argued, Detroit, Mich., for defendant-appellant.
Leonard R. Gilman, U.S. Atty., Michael J. Lavoie, Art Noel, argued, Detroit, Mich., for plaintiff-appellee.
Before KEITH and KRUPANSKY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
KEITH, Circuit Judge.
The appellant, Laura Trombley, was indicted in a multiple count indictment in which she and four other individuals were charged with violations of 18 U.S.C. § 2, § 2312 and § 2313. A jury trial was held, and appellant was convicted on Count Three of transporting a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. §§ 2312 and 2. She was convicted on Count Four of receiving a stolen motor vehicle which was part of and constituted interstate commerce in violation of 18 U.S.C. § 2313. Appellant was sentenced to three years probation with a fine of $1,000 to be paid within two years. This appeal followed. For the reasons set forth below, we affirm.
In March of 1982, the FBI conducted an undercover project in Detroit known as Project Derings. The goal of the project was to have undercover agents introduced to individuals who were involved in large scale commercial auto theft rings. To facilitate the introduction, undercover FBI agents represented themselves as corrupt employees of the Michigan Secretary of State’s office who were selling fraudulent titles, registrations, and license plates to automobile thieves for $1,000.
Joseph Finnegan, an undercover agent, adopted the identity of Joe Booker and posed as a corrupt official of the Secretary’s Office. On June 16, 1982, Agent Finnegan prepared a Michigan vehicle title, registration, and a license plate for Laura Irene Trombley, who resided at 23072 North Brookside Drive, Dearborn Heights, Michigan. Finnegan delivered these documents to Gwen Clemens, who conveyed them to the appellant through Eric Fair (Eric Fair was also indicted in this case).
Approximately six months later, on December 9, 1982, Agent Finnegan recorded a telephone conversation with Ms. Trombley. The overall thrust of the conversation was her complaint that the paperwork for the 1981 Seville, which she had obtained from Eric Fair, did not adequately legitimize the stolen automobile. During this conversation, she made several admissions. The appellant admitted that she had acquired a 1981 Cadillac Seville for $3,700, instead of a Lincoln Continental, in approximately March of 1982. She also admitted that she took out a loan for $3,000 from General Finance, using the car as collateral. The loan was used to take a trip to Texas to visit her son who was in the hospital. In driving to Texas, appellant indicated that she had travelled across sixteen state lines, and in doing so, was concerned about the result if she had been stopped by police. She further admitted that she knew the car was “hot”. In response to the undercover agent’s question as to why she decided to acquire the car knowing it was “hot”, the appellant stated: “Well, because my son owed me some money and uh, my son knew Eric and Sam.” The appellant acknowledged that she knew that the vehicle identification number had been altered on the automobile. Finally, the appellant admitted that she had driven to Texas accompanied by her mother. Throughout the conversation, the defendant persisted in efforts to acquire additional paperwork for the automobile which she hoped would make it “legal”.
Eric Fair testified that he met the appellant through one of her sons and attempted to obtain a Lincoln Continental as requested by the appellant for $2,500. He was unable to obtain a Lincoln, but did acquire a 1981 Seville. He took the Seville to the house of one of appellant’s sons. Trombley inspected the car, which had a broken window and a damaged ignition. Ms. Trombley gave Fair money to repair these items, and the car was taken to her garage.
Fair also testified that the appellant contacted him some time later and told him the plates had expired and she could not get them renewed. Trombley told Fair that she had to get the plates renewed so that she could visit her son in Texas. Fair gave the appellant’s phone number to the undercover agent (Agent Finnegan) so he could contact her about the problem with the paperwork.
The evidence showed that the 1981 Cadillac had been stolen from Lorraine Harris in late February 1982. According to Ms. Harris the automobile had less than three thousand miles when stolen and was valued at $14,500. In December 1982 there were approximately eight thousand miles on the car’s odometer.
The appellant admitted that she travelled to Texas in the summer of 1982 but that she went in a 1968 Cadillac instead of the 1981 Cadillac Seville. She stated that she took the older car because it had more space for luggage and a roomier backseat for her mother. When confronted with her tape-recorded admission to undercover agent Finnegan that she had taken the Seville to Texas, she said that it was a false statement. The appellant said she told the undercover agent she had taken the car across state lines in an effort to try and scare him into getting proper paperwork.
The sole question presented for review is whether appellant’s pre-arrest, out-of-court admission to an undercover government agent that she transported a stolen motor vehicle between Michigan and Texas was sufficiently corroborated to establish the jurisdictional element of interstate transportation.
The appellant contends that the government relied entirely on the tape recorded admissions made during the conversation with the undercover FBI agent to prove that the stolen 1981 Cadillac Seville travelled in interstate commerce. The appellant claims that because the prosecution failed to provide any independent corroboration of the admission, the conviction should be reversed. The government submits that the appellant’s admission that the stolen 1981 Cadillac Seville was transported to Texas was corroborated elsewhere in the government’s case. Furthermore, even if corroboration was lacking, the defendant’s entire statement to the undercover agent was amply corroborated as a whole, and sufficient to prove interstate transportation.
The Supreme Court has recognized that the government must introduce independent evidence to establish the trustworthiness of a defendant’s statement. Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954). The Supreme Court further held in Smith v. United States, 348 U.S. 147, 155, 75 S.Ct. 194, 198, 99 L.Ed. 192 (1954) that the corroboration rule was applicable not only to confessions but also to mere admissions where the admission is made after the fact to an official charged with investigating the possibility of wrongdoing, and the statement embraces an element of the case.
It is generally recognized that corroboration in federal court does not entail independent proof of each element of the offense charged. The purpose of corroboration is to ensure the reliability of the confession or admission of the accused. United States v. Bukowski, 435 F.2d 1094, 1106 (7th Cir.1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). Thus, the requirement is only that there be extrinsic evidence corroborating the admission as a whole which, taken together with the admission, is sufficient to support a finding of guilt beyond a reasonable doubt. United States v. Gravitt, 484 F.2d 375, 381 (5th Cir.), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1973). If there is extrinsic evidence tending to corroborate the confession, the confession as a whole is admissible, and some elements of the offense may be proven entirely on the basis of a corroborated confession. United States v. White, 493 F.2d 3 (5th Cir.), cert. denied, 419 U.S. 901, 95 S.Ct. 186, 42 L.Ed.2d 147 (1974).
In United States v. Wilson, 436 F.2d 122 (3d Cir.), cert. denied, 402 U.S. 912, 91 S.Ct. 1393, 28 L.Ed.2d 654 (1971), the court examined a corroboration issue which is virtually on all fours with the present case. In Wilson, the defendant made an admission to a Philadelphia detective that he drove a Dodge Charger from Philadelphia to California. In other parts of the defendant’s admission he stated where he had purchased the car and that he was stopped by a policeman in California. These other parts of defendant’s admission were corroborated. The court stated that since two parts of the defendant’s admission were corroborated by other evidence, this established the trustworthiness of the entire admission and the prosecutor could prove the element of interstate transportation solely by the defendant’s admission.
In the present case, the government could prove the interstate transportation element entirely by the appellant’s statements to Agent Finnegan, provided there were other parts of the defendant’s statement which were corroborated.
The appellant talked with the undercover agent because she had been told by Eric Fair that he was the one who provided the paperwork in the past for the stolen car. Since appellant was unable to obtain renewed license plates for the car, she contacted the undercover agent to obtain the necessary paperwork from him. During this conversation appellant made numerous admissions relative to her acquisition of the stolen car, her use of the stolen car, her knowledge that the car was stolen, and her transportation of the car from Michigan to Texas and back. Specifically, she admitted the following: that she received the car from Eric Fair; that she had two different sets of papers for the car; that the first set was entirely wrong; that she paid $3,700 in full for the car; that she had initially ordered a Mark VI for $2,500, but had to pay an additional $1,200 for the Cadillac Seville because it was “too hard to take”; that she took the car across sixteen state lines to visit her injured son in Texas; that she knew the car was stolen; that she bought the car knowing it was “hot” because her son owed her some money and this would “cross the bill off”; that her mother went to Texas with her; and that she knew the vehicle identification number was altered by changing a five to an eight. In the second conversation, held minutes after the first one, the appellant continued to complain about the adequacy of the paperwork for the car and persisted in her attempts to obtain paperwork which would “legitimize” the stolen car. At one point appellant again admitted that she knew the car was stolen, and said “they tell me this is all legal when they give you this paperwork”.
The appellant’s preceding statements were corroborated by other evidence presented in this case. Eric Fair testified that he delivered the stolen car to Trombley’s house, that the vehicle identification number had been changed, that he delivered the paperwork for the stolen car to the appellant, and that she told him she was going to see her sick son in Texas. The appellant’s admission that the vehicle identification number was altered from five to eight was also corroborated. Special Agent Charles Poplinger of the FBI testified as an expert witness that the defendant’s title contained a vehicle identification number which had been altered by changing a five to an eight. Additionally, all defense witnesses testified that Trombley travelled to Texas in the summer of 1982 to visit her sick son.
The appellant’s admission that she drove across state lines is also corroborated. Lorraine Harris, the owner of the car, testified that the car was stolen in February of 1982 and that there were less than three thousand miles on the car at the time of the theft. The appellant testified that there were approximately eight thousand miles on the car when she talked to the undercover agent in December of 1982. The only reasonable explanation for the additional five thousand miles was the appellant’s trip to Texas. The appellant testified that she did not drive the car prior to obtaining insurance on July 14, 1982. Approximately one week later she left for Texas. On October 22, 1982, appellant’s husband attempted to get new plates for the car, but was unable to do so. After this date the car was kept in the appellant’s garage. Therefore, the only reasonable explanation for the additional mileage was the trip to Texas. These facts corroborate the appellant’s admission that she drove to Texas.
Based on these facts, corroboration exists for both the whole and the part of the appellant’s admission, establishing the jurisdictional element of interstate transportation.
Accordingly, we affirm the judgment of the Honorable Thomas P. Thornton of the United States District Court for the Eastern District of Michigan.
. Title 18 U.S.C. § 2 provides:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
Title 18 U.S.C. § 2312 provides:
Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
Title 18 U.S.C. § 2313 provides:
Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
Question: Did the court support the decision of an administrative law judge?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_r_fiduc
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
HOOD, Com’r of Banks of North Carolina v. BROWNLEE. In re PATTERSON.
No. 3301.
Circuit Court of Appeals, Fourth Circuit.
Jan. 10, 1933.
"William C. Meekins, of Hendersonville, N. C. (M. M. Redden, of Hendersonville, N. C., on the brief), for appellant.
Thomas H. Franks, of Hendersonville, N. C. (Lipscomb & Lipscomb, of Asheville, N. C., on the brief), for appellee.
Before PARKER and NORTHCOTI, Circuit Judges, and CHESNUT, District Judge.
PARKER, Circuit Judge.
This is a controversy between the trustee of a bankrupt estate and the State Commissioner of Banks, who is in charge of an insolvent bank and has succeeded to its assets. The bankrupt at the time of his adjudication in bankruptcy was indebted to the bank in the sum of $41,250 in excess of the value of the property held as security for the debt. Some time after the adjudication, the trustee in bankruptcy deposited in the bank, which had been designated as a depositary of bankrupt estates, the cash derived from the sale of assets of the bankrupt. Later the bank became insolvent and suspended business, having on deposit to the credit of the trustee in bankruptcy the sum of $15,757.64, which was reduced by collections from the sureties on the bank’s bond to the sum of $5,888.95. On proof of debt in the bankruptcy proceeding by the Commissioner of Banks, the question of the right of set off was raised, the commissioner contending that ha was entitled to set off the $41,250 debt o£ the bankrupt against the $5,888.95 balance on deposit and have claim allowed against the bankrupt estate for the balance, or that he was at least entitled to an order directing that the trustee in bankruptcy be allowed to set off merely the dividends on the claim against the insolvent bank against the dividends due on the claim, against the bankrupt estate. The judge below, after allowing the claim against the bankrupt estate in the sum of $41,250, ordered that no dividend should be paid thereon until other unsecured creditors of the bankrupt should have received in .dividends on their claims pro rata amounts equivalent to a dividend of $5,888.95 on the $41,250' claim- of the bank; and from'this order the Commissioner of Banks has appealed.
The effect of the order appealed from is to deny the light to set off claim against claim or dividend against dividend, and to allow the trustee 'in bankruptcy to set off against the amount to which the Commissioner of Banks may be entitled in dividends from the bankrupt estate the amount due the trustee by the bank as a deposit balance. We have listened with interest to the able argument of counsel for appellant and have carefully considered the authorities cited in his brief, but we think that the action of the learned judge below was correct. The position of the Commissioner of Banks is not different from what that of the bank would have been if insolvency had not occurred; for the receiver of -an insolvent bank, which is the position that the commissioner occupies, merely succeeds to the rights of the bank and has no right with respect to its assets wdiieh the bank itself would not have had. Gardner v. Chicago Title & Trust Co., 261 U. S. 453, 456, 43 S. Ct. 424, 67 L. Ed. 741, 29 A. L. R. 622; Burrowes v. Nimocks (C. C. A. 4th) 35 F.(2d) 152, 159; Schumacher v. Eastern Bank & Trust Co. (C. C. A. 4th) 52 F.(2d) 925, 928 ; 3 R. C. L. 641; Funk v. Young, 138 Ark. 38, 210 S. W. 143, 5 A. L. R. 79; Gilbertson v. Northern Trust Co., 53 N. D. 502, 207 N. W. 42, 42 A. L. R. 1353.
It is perfectly clear that the bank had no right to set off the debt of the bankrupt against the deposit of the trustee, for the reason that the debt due by the bankrupt to the bank and the debt owing by the bank to the trustee on account of the deposit were not mutual debts or credits within the meaning of section 68 of the Bankruptcy Act, 11 USCA § 108; Western Tie & Timber Co. v. Brown, 196 U. S. 502, 25 S. Ct. 339, 49 L. Ed. 571. And see note in 71 A. L. R. at page 806 and cases, there cited. They were not owing by and to the bank “in the same right.” The elaim of the bank arose out of the individual debt of the bankrupt, and the only liability of the trustee with respect thereto was to apply upon it a pro rata portion of the assets of the bankrupt estate under the order of the court of bankruptcy. The liability o-f the bank on the deposit made by the trustee was to the trustee as representative, not of the bankrupt alone, but also of the creditors of the bankrupt estate. If the bankrupt himself had made the deposit with a view of giving the bank a preferential payment on its elaim, the bank would not have had the right of set off. Citizens’ Nat. Bank v. Lineberger (C. C. A. 4th) 45 F.(2d) 522, 529. A fortiori, the bank may not obtain a preference by setting off a debt due by the bankrupt against estate funds deposited by the trustee.
The question that next arises is whether the trustee in bankruptcy may set off the liability of the bank for the balance of the deposit against dividends to which the bank may become entitled on its elaim allowed against the bankrupt estate, which is what the order appealed from virtually allows. As above indicated, we think that he may. the deposit is due by the bank to the trustee as representative of the estate of the bankrupt. Dividends are payable by him in the same capacity. The debts arising out of the deposit and the liability for dividends are, therefore, mutual and in the same right; and there is no reason for denying to the trustee the right of set off. To look at the matter in another way, the bank received funds of the estate when the deposit was made. Now, when its insolvency has precluded the trustee from recovering these funds, it should not receive additional funds by way of dividends until other creditors of the estate have shared on a pro rata basis to an equal extent.
A ease which we regard as “on all fours” with the case at bar is Gardner v. Chicago Title & Trust Co., supra, 261 U. S. 453, 43 S. Ct. 424, 67 L. Ed. 741, 29 A. L. R. 622. In that ease the trustees in bankruptcy had deposited funds belonging to a bankrupt estate in a bank to which the bankrupt was indebted on á note and which had filed a elaim against the estate. The bank later became insolvent. On a petition by the trustee in-bankruptcy to set off the deposit against the claim of the bank, the Supreme Court reversed the aetion of the lower court in denying the set off and authorized the bankruptcy court to withhold dividends on the elaim of the bank until the debt due the trustee on account of the deposit of funds should be repaid. This was precisely what was done in the ease at bar. The court in that ease, speaking through Mr. Justice Holmes, said: “We assume that when money is deposited in a designated bank under § 61 of the Bankruptcy Law of July 1, 1898, c. 541, 30 Stat. 562 [11 USCA § 101], it is deposited as other money is, and becomes the property of the bank, leaving the bank a debtor for the amount. But when this money was deposited with this Bank it seems that the Bank had notice that it was part of a fund appropriated to paying the Coal Company’s debts, of which the note held by the Bank was one. We think that it would be inequitable to allow the Bank to proceed to diminish that fund without accounting for the portion that it had received. When the Bank accepted deposits from a fund against which it had a credit it must be taken to have known that it could not profit by the fact at the expense of other claimants. The Bank knew the whole situation. There is nothing to show that the Trustees of the Coal Company when they made their deposits knew that the Bank held the Coal Company’s note. If they had known this fact it would be going far to say that they altered or eould alter the position of their eestuis que trust for the worse. On the other hand the creditors of the Bank can stand no better than the Bank. The Bankruptcy Court may allow the Bank’s claim for such sum only as may seem to the Court to be owing above the value of the security, § 57e [11 USCA § 93], and may withhold dividends upon that sum until, the debt due to the trustee has been paid. Western Tie & Timber Co. v. Brown, 196 U. S. 502, 511, 25 S. Ct. 339, 49 L. Ed. 571.”
We have carefully examined the case of Peurifoy v. Gamble, 145 S. C. 1, 142 S. E. 788, 71 A. L. R. 783, which denied to the receiver of an insolvent bank the right to set off a deposit made by him in another bank which later became insolvent against dividends due on a claim of the latter bank. But the majority of the Supreme Court of South Carolina refused to follow in that case the decision of the Supreme Court of the United States in Gardner v. Chicago Title & Trust Co., supra, by which we are bound; and the dissenting opinion of Mr. Justice Cothran contains an able discussion of the principles involved with an exhaustive review of the authorities, and, we think, lays down correctly the principle which should be applied in cases such as this.
The trustee’s liability to the bank is not for the face of the claim but for dividends which may be allowed upon it; and it is but equitable that against this liability he bo allowed to set off the deposit which was made by him in the same capacity as that in which he is charged with liability for dividends. There can be no doubt that an individual who had deposited funds in the failed bank would have had the right to set off the deposit against a liability to the bank; and we see no reason why a fiduciary, such as a trustee in bankruptcy, would not have the same right. A receiver who had borrowed from a bank on receiver’s certificates would certainly be allowed to set off a deposit against his liability on the certificates; and the same principle would permit the trustee in bankruptcy to sot off the deposit against dividends.
For the reasons stated, we think that the order appealed from is correct and same will accordingly be affirmed.
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
sc_partywinning
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
NEITZKE et al. v. WILLIAMS
No. 87-1882.
Argued February 22, 1989
Decided May 1, 1989
Marshall, J., delivered the opinion for a unanimous Court.
Robert S. Spear argued the cause for petitioners. With him on the briefs was Linley E. Pearson, Attorney General of Indiana, and David A. Noioak, Deputy Attorney General.
George A. Rutherglen, by appointment of the Court, 488 U. S. 939, argued the cause and filed a brief for respondent.
Justice Marshall
delivered the opinion of the Court.
The question presented is whether a complaint filed in forma pauperis which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) is automatically frivolous within the meaning of 28 U. S. C. § 1915(d). The answer, we hold, is no.
I
On October 27, 1986, respondent Harry Williams, Sr., an inmate in the custody of the Indiana Department of Corrections, filed a complaint under 42 U. S. C. § 1983 in the United States District Court for the Southern District of Indiana, naming five Indiana correctional officials as defendants. App. 38. The complaint alleged that, while at the Indiana State Prison, Williams had been diagnosed by a prison doctor as having a small brain tumor which affected his equilibrium. Id., at 40. Because of this condition, the doctor placed Williams for one year on “medical idle status.” A medical report Williams attached to the complaint stated that “[i]t is very likely that he will have this condition for some time to come.” Id., at 48.
The complaint further alleged that, when Williams was transferred to the Indiana State Reformatory, he notified the reformatory staff about the tumor and about the doctor’s recommendation that he not participate in any prison work program. Id., at 41. Despite this notification, reformatory doctors refused to treat the tumor, id., at 40-41, and reformatory officials assigned Williams to do garment manufacturing work, id., at 42. After Williams’ equilibrium problems worsened and he refused to continue working, the reformatory disciplinary board responded by transferring him to a less desirable cell house. Id., at 42-43.
The complaint charged that by denying medical treatment, the reformatory officials had violated Williams’ rights under the Eighth Amendment, and by transferring him without a hearing, they had violated his rights under the Due Process Clause of the Fourteenth Amendment. Id., at 44. The complaint sought money damages and declaratory and injunctive relief. Id., at 45-46. Along with the complaint, Williams filed a motion to proceed informa pauperis pursuant to 28 U. S. C. § 1915(a), stating that he had no assets and only prison income. App. 36-37.
The District Court dismissed the complaint sua sponte as frivolous under 28 U. S. C. § 1915(d) on the grounds that Williams had failed to state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6). Insofar as Williams claimed deficient medical care, his pleadings did not state a claim of “deliberate indifference to [his] serious medical needs,” as prisoners’ Eighth Amendment claims must under Estelle v. Gamble, 429 U. S. 97, 104 (1976), but instead described a constitutionally noncognizable instance of medical malpractice. Williams v. Faulkner, Cause No. IP 86-1307-C (SD Ind., Jan. 16, 1987), reprinted at App. 67. Insofar as Williams protested his transfer without a hearing, his pleadings failed to state a due process violation, for a prisoner has no constitutionally protected liberty or property interest in being incarcerated in a particular institution or a particular wing. Id., at 26. The court gave no other reasons for finding the complaint frivolous. On Williams’ ensuing motion to vacate the judgment and amend his pleadings, the District Court reached these same conclusions. Williams v. Faulkner, Cause No. IP 86-1307-C (SD Ind., Mar. 11, 1987), reprinted at App. 29.
The Court of Appeals for the Seventh Circuit affirmed in part and reversed in part. Williams v. Faulkner, 837 F. 2d 304 (1988). In its view, the District Court had wrongly equated the standard for failure to state a claim under Rule 12(b)(6) with the standard for frivolousness under § 1915(d). The frivolousness standard, authorizing sua sponte dismissal of an in forma pauperis complaint “only if the petitioner cannot make any rational argument in law or fact which would entitle him or her to relief,” is a “more lenient” standard than that of Rule 12(b)(6), the court stated. 837 F. 2d, at 307. Unless there is “‘indisputably absent any factual or legal basis’” for the wrong asserted in the complaint, the trial court, “[i]n a close case,” should permit the claim to proceed at least to the point where responsive pleadings are required. Ibid, (citation omitted).
Evaluated under this frivolousness standard, the Court of Appeals held, Williams’ Eighth Amendment claims against two of the defendants had been wrongly dismissed. Although the complaint failed to allege the level of deliberate indifference necessary to survive a motion to' dismiss under Rule 12(b)(6), at this stage of the proceedings, the court stated, “we cannot state with certainty that Williams is unable to make any rational argument in law or fact to support his claim for relief” against these defendants. 837 F. 2d, at 308. Accordingly, the Court of Appeals reversed and remanded these claims to the District Court. The Court of Appeals affirmed the dismissal of Williams’ due process claims as frivolous, however. Because the law is clear that prisoners have no constitutionally protected liberty interest in remaining in a particular wing of a prison, the court stated, Williams could make no rational argument in law or fact that his transfer violated due process. Id., at 308-309.
We granted the petition for a writ of certiorari, 488 U. S. 816 (1988), filed by those defendants against whom Williams’ claims still stand to decide whether a complaint that fails to state a claim under Rule 12(b)(6) is necessarily frivolous within the meaning of § 1915(d), a question over which the Courts of Appeals have disagreed. We now affirm.
I — H HH
The federal informa pauperis statute, enacted in 1892 and presently codified as 28 U. S. C. § 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts. Adkins v. E. I. DuPont de Nemours & Co., 335 U. S. 331, 342-343 (1948). Toward this end, § 1915(a) allows a litigant to commence a civil or criminal action in federal court in forma pauperis by filing in good faith an affidavit stating, inter alia, that he is unable to pay the costs of the lawsuit. Congress recognized, however, that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits. To prevent such abusive or captious litigation, § 1915(d) authorizes federal courts to dismiss a claim filed informa pauperis “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” Dismissals on these grounds are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints. See Franklin v. Murphy, 745 F. 2d 1221, 1226 (CA9 1984).
The brevity of § 1915(d) and the generality of its terms have left the judiciary with the not inconsiderable tasks of fashioning the procedures by which the statute operates and of giving content to § 1915(d)’s indefinite adjectives. Articulating the proper contours of the § 1915(d) term “frivolous,” which neither the statute nor the accompanying congressional reports defines, presents one such task. The Courts of Appeals have, quite correctly in our view, generally adopted as formulae for evaluating frivolousness under § 1915(d) close variants of the definition of legal frivolousness which we articulated in the Sixth Amendment case of Anders v. California, 386 U. S. 738 (1967). There, we stated that an appeal on a matter of law is frivolous where “[none] of the legal points [are] arguable on their merits.” Id., at 744. By logical extension, a complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact. As the Courts of Appeals have recognized, § 1915(d)’s term “frivolous,” when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.
Where the appellate courts have diverged, however, is on the question whether a complaint which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) automatically satisfies this frivolousness standard. The petitioning prison officials urge us to adopt such a per se reading, primarily on the policy ground that such a reading will halt the “flood of frivolous litigation” generated by prisoners that has swept over the federal judiciary. Brief for Petitioners 7. In support of this position, petitioners note the large and growing number of prisoner civil rights complaints, the burden which disposing of meritless complaints imposes on efficient judicial administration, and the need to discourage prisoners from filing frivolous complaints as a means of gaining a “‘short sabbatical in the nearest federal courthouse.’” Id., at 6, quoting Cruz v. Beto, 405 U. S. 319, 327 (1972) (Rehnquist, J., dissenting). Because a complaint which states no claim “must be dismissed pursuant to Rule 12(b)(6) anyway,” petitioners assert, “delaying] this determination until after service of process and a defendant’s response only delays the inevitable.” Reply Brief for Petitioners 3.
We recognize the problems in judicial administration caused by the surfeit of meritless in forma pauperis complaints in the federal courts, not the least of which is the possibility that meritorious complaints will receive inadequate attention or be difficult to identify amidst the overwhelming number of meritless complaints. See Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv. L. Rev. 610, 611 (1979). Nevertheless, our role in appraising petitioners’ reading of § 1915(d) is not to make policy, but to interpret a statute. Taking this approach, it is evident that the failure-to-state-a-claim standard of Rule 12(b)(6) and the frivolousness standard of § 1915(d) were devised to serve distinctive goals, and that while the overlap between these two standards is considerable, it does not follow that a complaint which falls afoul of the former standard will invariably fall afoul of the latter. Appealing though petitioners’ proposal may appear as a broadbrush means of pruning meritless complaints from the federal docket, as a matter of statutory construction it is untenable.
Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law. Hishon v. King & Spalding, 467 U. S. 69, 73 (1984); Conley v. Gibson, 355 U. S. 41, 45-46 (1957). This procedure, operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and factfinding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations,” Hishon, supra, at 73, a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one. What Rule 12(b)(6) does not countenance are dismissals based on a judge’s disbelief of a complaint’s factual allegations. District court judges looking to dismiss claims on such grounds must look elsewhere for legal support.
Section 1915(d) has a separate function, one which molds rather differently the power to dismiss which it confers. Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants are immune from suit, see, e. g., Williams v. Goldsmith, 701 F. 2d 603 (CA7 1983), and claims of infringement of a legal interest which clearly does not exist, like respondent Williams’ claim that his transfer within the reformatory violated his rights under the Due Process Clause. Examples of the latter class are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.
To the extent that a complaint filed in forma pauperis which fails to state a claim lacks even an arguable basis in law, Rule 12(b)(6) and § 1915(d) both counsel dismissal. But the considerable common ground between these standards does not mean that the one invariably encompasses the other. When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate, but dismissal on the basis of frivolousness is not. This conclusion follows naturally from § 1915(d)’s role of replicating the function of screening out inarguable claims which is played in the realm of paid cases by financial considerations. The cost of bringing suit and the fear of financial sanctions doubtless deter most inarguable paid claims, but such deterrence presumably screens out far less frequently those arguably meritorious legal theories whose ultimate failure is not apparent at the outset.
Close questions of federal law, including claims filed pursuant to 42 U. S. C. § 1983, have on a number of occasions arisen on motions to dismiss for failure to state a claim, and have been substantial enough to warrant this Court’s granting review, under its certiorari jurisdiction, to resolve them. See, e. g., Estelle v. Gamble, 429 U. S. 97 (1976); McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273 (1976); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971); Jones v. Alfred Mayer Co., 392 U. S. 409 (1968). It can hardly be said that the substantial legal claims raised in these cases were so defective that they should never have been brought at the outset. To term these claims frivolous is to distort measurably the meaning of frivolousness both in common and legal parlance. Indeed, we recently reviewed the dismissal under Rule 12(b)(6) of a complaint based on 42 U. S. C. § 1983 and found by a 9-to-0 vote that it had, in fact, stated a cognizable claim — a powerful illustration that a finding of a failure to state a claim does not invariably mean that the claim is without arguable merit. See Brower v. County of Inyo, 489 U. S. 593 (1989). That frivolousness in the § 1915(d) context refers to a more limited set of claims than does Rule 12(b)(6) accords, moreover, with the understanding articulated in other areas of law that not all unsuccessful claims are frivolous. See, e. g., Penson v. Ohio, 488 U. S. 75 (1988) (criminal defendant has right to appellate counsel even if his claims are ultimately unavailing so long as they are not frivolous); Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 422 (1978) (attorney’s fees may not be assessed against a plaintiff who fails to state a claim under 42 U. S. C. § 1988 or under Title VII of the Civil Rights Act of 1964 unless his complaint is frivolous); Hagans v. Lavine, 415 U. S. 528, 536-537 (1974) (complaint that fails to state a claim may not be dismissed for want of subject-matter jurisdiction unless it is frivolous).
Our conclusion today is consonant with Congress’ overarching goal in enacting the in forma pauperis statute: “to assure equality of consideration for all litigants.” Coppedge v. United States, 369 U. S. 438, 447 (1962); see also H. R. Rep. No. 1079, 52d Cong., 1st Sess., 1 (1892). Under Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motion is ruled upon. These procedures alert him to the legal theory underlying the defendant’s challenge, and enable him meaningfully to respond by opposing the motion to dismiss on legal grounds or by clarifying his factual allegations so as to conform with the requirements of a valid legal cause of action. This adversarial process also crystallizes the pertinent issues and facilitates appellate review of a trial court dismissal by creating a more complete record of the case. Brandon v. District of Columbia Board of Parole, 236 U. S. App. D. C. 155, 158, 734 F. 2d 56, 59 (1984), cert. denied, 469 U. S. 1127 (1985). By contrast, the sua sponte dismissals permitted by, and frequently employed under, § 1915(d), necessary though they may sometimes be to shield defendants from vexatious lawsuits, involve no such procedural protections.
To conflate the standards of frivolousness and failure to state a claim, as petitioners urge, would thus deny indigent plaintiffs the practical protections against unwarranted dismissal generally accorded paying plaintiffs under the Federal Rules. A complaint like that filed by Williams under the Eighth Amendment, whose only defect was its failure to state a claim, will in all likelihood be dismissed sua sponte, whereas an identical complaint filed by a paying plaintiff will in all likelihood receive the considerable benefits of the adversary proceedings contemplated by the Federal Rules. Given Congress’ goal of putting indigent plaintiffs on a similar footing with paying plaintiffs, petitioners’ interpretation cannot reasonably be sustained. According opportunities for responsive pleadings to indigent litigants commensurate to the opportunities accorded similarly situated paying plaintiffs is all the more important because indigent plaintiffs so often proceed pro se and therefore may be less capable of formulating legally competent initial pleadings. See Haines v. Kerner, 404 U. S. 519, 520 (1972).
We therefore hold that a complaint filed informa pauperis is not automatically frivolous within the meaning of § 1915(d) because it fails to state a claim. The judgment of the Court of Appeals is accordingly
Affirmed,
Both in its initial ruling and upon the motion to vacate and amend, the District Court also denied Williams leave to proceed informa pauperis. It based this denial exclusively on its finding of frivolousness, stating that Williams had presumptively satisfied § 1915’s poverty requirement. Williams v. Faulkner, Cause No. IP 86-1307-C (SD Ind., Jan. 16, 1987), reprinted at App. 22. In so ruling, the District Court adhered to precedent in the Court of Appeals for the Seventh Circuit to the effect that, if a district court finds a complaint frivolous or malicious, it should not only dismiss the complaint but also retroactively deny the accompanying motion to proceed informa pauperis under § 1915, regardless of the plaintiff’s financial status. See Wartman v. Branch 7, Civil Division, County Court, Milwaukee County, Wis., 510 F. 2d 130, 134 (1975). Other Circuits, however, treat the decision whether to grant leave to file in forma pauperis as a threshold inquiry based exclusively on the movant’s poverty. See, e. g., Franklin v. Murphy, 745 F. 2d 1221, 1226-1227, n. 5 (CA9 1984); Boyce v. Alizaduh, 595 F. 2d 948, 950-951 (CA4 1979). Because our review is confined to the question whether the complaint in this case is frivolous within the meaning of § 1915(d), we have no occasion to consider the propriety of these varying applications of the statute.
The two defendants against whom the Eighth Amendment claims were reinstated were Han Chul Choi, a reformatory doctor whom Williams alleged had refused to treat the brain tumor, and Dean Neitzke, who as administrator of the reformatory infirmary was presumptively responsible for ensuring that Williams received adequate medical care. Williams v. Faulkner, 837 F. 2d 304, 308 (CA7 1988). The Court of Appeals held that Williams’ complaint had alleged no personal involvement on the part of the remaining three defendants in his medical treatment, and that these defendants’ prison jobs did not justify an “inference of personal involvement in the alleged deprivation of medical care.” Ibid. Because Williams could thus make no rational argument to support his claims for relief against these officials, the Court of Appeals stated, the District Court had appropriately dismissed those claims as frivolous. Ibid.
Compare Brandon v. District of Columbia Board of Parole, 236 U. S. App. D. C. 155, 159, 734 F. 2d 56, 59 (1984), cert. denied, 469 U. S. 1127 (1985), with Harris v. Menendez, 817 F. 2d 737, 740 (CA11 1987); Spears v. McCotter, 766 F. 2d 179, 182 (CA5 1985); Franklin, supra, at 1227; Malone v. Colyer, 710 F. 2d 258, 261 (CA6 1983).
See, e. g., Catz & Guyer, Federal In Forma Pauperis Litigation: In Search of Judicial Standards, 31 Rutgers L. Rev. 655 (1978); Feldman, Indigents in the Federal Courts: The In Forma Pauperis Statute — Equality and Frivolity, 54 Ford. L. Rev. 413 (1985).
See, e. g., Payne v. Lynaugh, 843 F. 2d 177, 178 (CA5 1988); Franklin, 745 F. 2d, at 1227-1228; Johnson v. Silvers, 742 F. 2d 823, 824 (CA4 1984); Brandon, supra, at 159, 734 F. 2d, at 59; Wiggins v. New Mexico State Supreme Court Clerk, 664 F. 2d 812, 815 (CA10 1981), cert. denied, 459 U. S. 840 (1982).
A patently insubstantial complaint may be dismissed, for example, for want of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See, e. g., Hagans v. Lavine, 415 U. S. 528, 536-537 (1974) (federal courts lack power to entertain claims that are “ ‘so attenuated and unsubstantial as to be absolutely devoid of merit’ ”) (citation omitted); Bell v. Hood, 327 U. S. 678, 682-683 (1946).
At argument, Williams’ counsel estimated that many, if not most, prisoner complaints which fail to state a claim also fall afoul of § 1915’s strictures, Tr. of Oral Arg. 27, an estimate with which our experience does not incline us to take issue.
We have no occasion to pass judgment, however, on the permissible scope, if any, of sua sponte dismissals under Rule 12(b)(6).
Petitioners’ related suggestion that, as a practical matter, the liberal pleading standard applied to pro se plaintiffs under Haines provides ample protection misses the mark for two reasons. First, it is possible for a plaintiff to file in forma pauperis while represented by counsel. See, e. g., Adkins v. E. I. DuPont de Nemours & Co., 335 U. S. 331 (1948). Second, the liberal pleading standard of Haines applies only to a plaintiff’s factual allegations. Responsive pleadings thus may be necessary for a pro se plaintiff to clarify his legal theories.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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sc_casedisposition
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
BALDWIN v. ALABAMA
No. 84-5743.
Argued March 27, 1985
Decided June 17, 1985
Blackmun, J., delivered the opinion of the Court, in which White, Powell, Rehnquist, and O’Connor, JJ., joined. Burger, C. J., filed an opinion concurring in the judgment, post, p. 390. Brennan, J., filed a dissenting opinion, post, p. 392. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 393.
John L. Carroll argued the cause and filed a brief for petitioner.
Edward E. Carnes, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was Charles A. Graddick, Attorney General.
Justice Blackmun
delivered the opinion of the Court.
Between 1976 and 1981, an Alabama statute required a jury that convicted a defendant of any one of a number of specified crimes “with aggravation” to “fix the punishment at death.” Ala. Code § 13-ll-2(a) (1975). The “sentence” imposed by the jury, however, was not dispositive. Instead, “[notwithstanding the fixing of the punishment at death by the jury,” §13-11-4, the trial judge then was to hear evidence of aggravating and mitigating circumstances and, after weighing those circumstances, to sentence the defendant to death or to life imprisonment without parole.
This case concerns the constitutionality of the peculiar and unusual requirement of the 1975 Alabama Act that the jury “shall fix the punishment at death,” even though the trial judge is the actual sentencing authority. The United States Court of Appeals for the Eleventh Circuit ruled that the scheme was facially unconstitutional. Ritter v. Smith, 726 F. 2d 1505, 1515-1517, cert. denied, 469 U. S. 869 (1984). Shortly thereafter, however, the Supreme Court of Alabama, with two dissenting votes, ruled to the contrary in the present case. Ex parte Baldwin, 456 So. 2d 129, 138-139 (1984). We granted certiorari to resolve this significant conflict. 469 U. S. 1085 (1984).
I
A
The facts are sordid, but a brief recital of them must be made. Petitioner Brian Keith Baldwin, then 18 years of age, escaped from a North Carolina prison camp on Saturday, March 12,1977. That evening, he and a fellow escapee, Edward Horsley, came upon 16-year-old Naomi Rolon, who was having trouble with her automobile. The two forcibly took over her car and drove her to Charlotte, N. C. There, both men attempted to rape her, petitioner sodomized her, and the two attempted to choke her to death. They then ran over her with the car, locked her in its trunk, and left her there while they drove through Georgia and Alabama. Twice, when they heard the young woman cry out, they stopped the car, opened the trunk, and stabbed her repeatedly. On Monday afternoon, they stole a pickup truck, drove both vehicles to a secluded spot, and, after again using the car to run over the victim, cut her throat with a hatchet. She died after this 40-hour ordeal.
Petitioner was apprehended the following day driving the stolen truck. He was charged with theft. While in custody, he confessed to the victim’s murder and led the police to her body. He was then indicted for “robbery . . . when the victim is intentionally killed,” a capital offense, § 13-11-2(a)(2), and was tried before a jury in Monroe County. At the close of the evidence regarding guilt or innocence, the judge instructed the jury that if it found the petitioner guilty, “the Legislature of the State of Alabama has said this is a situation [in] which . . . the punishment would be death by electrocution,” Tr. 244-245, and the jury therefore would be required to sentence petitioner to death. Id., at 242. The jury found petitioner guilty, in the terms of the statute, of robbery with the aggravated circumstance of intentionally killing the victim, and returned a verdict form that stated: “We, the Jury, find the defendant guilty as charged in the indictment and fix his punishment at death by electrocution.” App. 4.
B
Under Alabama’s 1975 Death Penalty Act, once a defendant was convicted of any one of 14 specified aggravated offenses, see Ala. Code §13-ll-2(a) (1975), and the jury returned the required death sentence, the trial judge was obligated to hold a sentencing hearing:
“[T]he court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole. In the hearing, evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7.” § 13-11-3.
The judge was then required to sentence the defendant to death or to life imprisonment without parole:
“Notwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death.” § 13-11-4.
If the court imposed a death sentence, it was required to set forth in writing the factual findings from the trial and the sentencing hearing, including the aggravating and mitigating circumstances that formed the basis for the sentence. Ibid. The judgment of conviction and sentence of death were subject to automatic review by the Court of Criminal Appeals, and, if that court affirmed, by the Supreme Court of Alabama. §§ 13-11-5, 12-22-150; Ala. Rule App. Proc. 39(c). See Beck v. State, 396 So. 2d 645, 664 (Ala. 1981); Evans v. Britton, 472 F. Supp. 707, 713-714, 723-724 (SD Ala. 1979), rev’d on other grounds, 628 F. 2d 400 (CA5 1980), 639 F. 2d 221 (1981), rev’d sub nom. Hopper v. Evans, 456 U. S. 605 (1982).
C
Following petitioner’s conviction, the trial judge held the sentencing hearing required by § 13-11-3. The State reintroduced the evidence submitted at trial, and introduced petitioner’s juvenile and adult criminal records, as well as Edward Horsley’s statement regarding the crime. Petitioner then took the stand and testified that he had “a hard time growing up”; that he left home at the age of 13 because his father did not like him to come home late at night; that he dropped out of school after the ninth grade; that he made a living by “street hustling”; that he had been arrested approximately 30 times; and that he was a drug addict. App. 8-10. At the conclusion of petitioner’s testimony, the trial judge stated:
“Brian Keith Baldwin, today is the day you have in court to tell this judge whatever is on your mind . . . , now is your time to tell the judge anything that you feel like might be helpful to you in the position that you find yourself in. I want to give you every opportunity in the world that I know about. . . . Anything you feel like you can tell this Judge that will help you in your present position.” Id., at 12.
Petitioner then complained about various aspects of his trial, and concluded: “I ain’t saying I’m guilty but I might be guilty for murder but I ain’t guilty for robbery down here. That’s all I got to say.” Id., at 13.
The judge stated that “having considered the evidence presented at the trial and at said sentence hearing,” id., at 17-18, the court found the following aggravating circumstances: the capital offense was committed while petitioner was under a sentence of imprisonment in the State of North Carolina from which he had escaped; petitioner previously had pleaded guilty to a felony involving the use of violence to the person; the capital offense was committed while petitioner was committing a robbery or in flight after the robbery; and the offense was especially heinous, atrocious, or cruel. The judge found that petitioner’s age — 18 at the time of the crime — was the only mitigating circumstance. Id., at 18. He then stated:
“The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted.” Ibid.
The Supreme Court of Alabama eventually affirmed the conviction and sentence. 456 So. 2d 129 (1984). In his argument to that court, petitioner contended that the 1975 Act was facially invalid. Tracking the reasoning of the Eleventh Circuit in Ritter v. Smith, 726 F. 2d, at 1516-1517, he argued that the jury’s mandatory sentence was unconstitutional because it was unguided, standardless, and reflected no consideration of the particular defendant or crime, and that the judge’s sentence was unconstitutional because it was based in part upon consideration of the impermissible jury sentence and was infected by it. The court rejected petitioner’s arguments, holding that even though the jury had no discretion regarding the “sentence” it would impose, the sentencing procedure was saved by the fact that it was the trial judge who was the true sentencing authority, and he considered aggravating and mitigating circumstances before imposing sentence. 456 So. 2d, at 139.
I — I I — I
If the jury’s “sentence” were indeed the dispositive sentence, the Alabama scheme would be unconstitutional under the principles announced in Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion), and Roberts (Stanislaus) v. Louisiana, 428 U. S. 325 (1976) (plurality opinion). See also Roberts (Harry) v. Louisiana, 431 U. S. 633 (1977). In Woodson, the Court held that North Carolina’s sentencing scheme, which imposed a mandatory death sentence for a broad category of homicidal offenses, violated the Eighth and Fourteenth Amendments in three respects. First, such mandatory schemes offend contemporary standards of decency, as evidenced by the frequency with which jurors avoid the imposition of mandatory death sentences by disregarding their oaths and refusing to convict, and by the consistent movement of the States and Congress away from such schemes. 428 U. S., at 288-301. Second, by refusing to convict defendants who the jurors think do not deserve the death penalty, juries exercise unguided and unchecked discretion regarding who will be sentenced to death. Id., at 302-303. Third, such mandatory schemes fail to allow particularized consideration of the character and record of the defendant and the circumstances of the offense. Id., at 303-305. Alabama’s requirement that the jury impose a mandatory sentence for a wide range of homicides, standing alone, would suffer each of those defects.
The jury’s mandatory “sentence,” however, does not stand alone under the Alabama scheme. Instead, as has been described above, the trial judge thereafter conducts a separate hearing to receive evidence of aggravating and mitigating circumstances, and determines whether the aggravating circumstances outweigh the mitigating circumstances. The judge’s discretion is guided by the requirement that the death penalty be imposed only if the judge finds the aggravating circumstance that serves to define the capital crime — in this case the fact that the homicide took place during the commission of a robbery — and only if the judge finds that the definitional aggravating circumstance, plus any other specified aggravating circumstance, outweighs any statutory and nonstatutory mitigating circumstances. § 13-11-4. Petitioner accordingly does not argue that the judge’s discretion under § 13-11-4 is not “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action,” Gregg v. Georgia, 428 U. S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Nor is there any issue before this Court that the 1975 Act did not allow “the type of individualized consideration of mitigating factors” by the sentencing judge that has been held constitutionally indispensable in capital cases. Lockett v. Ohio, 438 U. S. 586, 606 (1978) (plurality opinion); see also Eddings v. Oklahoma, 455 U. S. 104 (1982); Woodson v. North Carolina, 428 U. S., at 304 (plurality opinion).
Petitioner’s challenge to the Alabama scheme rests instead on the provision of the 1975 Act that allows the judge to weigh “the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury” in determining whether death is the appropriate sentence. §13-11-4. This Court has stated that a death sentence based upon consideration of “factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant,” would violate the Constitution. Zant v. Stephens, 462 U. S. 862, 885 (1983). Relying upon Zant, petitioner contends that, because the jury’s mandatory “sentence” would be unconstitutional standing alone, it is an impermissible factor for the trial judge to consider, as the statute appears to require, in the sentencing process. That argument conceivably might have merit if the judge actually were required to consider the jury’s “sentence” as a recommendation as to the sentence the jury believed would be appropriate, cf. Proffitt v. Florida, 428 U. S. 242 (1976), and if the judge were obligated to accord some deference to it. The jury’s verdict is not considered in that fashion, however, as the Alabama appellate courts’ construction of the Act, as well as the judge’s statements regarding the process by which he arrived at the sentence, so definitely indicates.
A
The language of § 13-11-4, to be sure, in so many words does not preclude the sentencing judge from considering the jury’s “sentence” in determining whether the death penalty is appropriate. The first clause of the section — “the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole” — does not authorize or require the court to weigh the jury’s “sentence” in determining whether to refuse to impose the death penalty. The second clause — “or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death”— does seem to authorize consideration of the jury’s “sentence.” It is not clear whether the second clause allows consideration of the jury’s “sentence” only if the weighing of the aggravating and mitigating circumstances authorized in the first clause has indicated that the “sentence” should not be rejected, or whether the second clause allows the judge to ignore the first clause and count the jury’s “sentence” as a factor, similar to an aggravating circumstance, weighing in favor of the death penalty. We therefore look to the Alabama courts’ construction of § 13-11-4. See Proffitt v. Florida, supra; Jurek v. Texas, 428 U. S. 262, 272-273 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).
The Alabama appellate courts have interpreted the 1975 Act expressly to mean that the sentencing judge is to impose a sentence without regard to the jury’s mandatory “sentence.” The Alabama Court of Criminal Appeals has stated: “The jury’s function is only to find guilt or innocence. The jury is not the sentencing authority.” Jacobs v. State, 361 So. 2d 607, 631 (1977), aff’d, 361 So. 2d 640 (Ala. 1978), cert. denied, 439 U. S. 1122 (1979). Indeed, the court has gone so far as to state:
“No sentence exists until the pronouncement by the trial judge at the conclusion of the sentence hearing. It is for this reason the court cannot be said to be commuting a sentence of death imposed by the jury, but, in truth and in fact, it is sentencing the accused after a jury’s finding of guilt.” Beck v. State, 365 So. 2d 985, 1005, aff’d, 365 So. 2d 1006 (Ala. 1978), rev’d on other grounds, 447 U. S. 625 (1980).
The court further has described the judge’s role as follows:
“The sentencing hearing is one of the most important and critical stages under Alabama’s death penalty law. The guilt stage has passed. Now an experienced trial judge must consider the particularized circumstances surrounding the offense and the offender and determine if the accused is to die or be sentenced to life imprisonment without parole. . . . The trial evidence must be reviewed to determine all of the aggravating circumstances leading up to and culminating in the death of the victim and then all the mitigating circumstances must be considered in determining if any outweigh the aggravating circumstances so found in the trial court’s findings of fact.” Richardson v. State, 376 So. 2d 205, 224 (1978), aff’d, 376 So. 2d. 228 (Ala. 1979).
Conspicuously absent from the court’s description of the judge’s duty is any mention of according weight or deference to the jury’s “sentence.”
The Supreme Court of Alabama agrees that “the jury is not the sentencing authority in . . . Alabama,” and has described the sentencing judge not as a reviewer of the jury’s “sentence,” but as the sentencer:
“In Alabama, the jury is not the body which finally determines which murderers must die and which must not. In fact, Alabama’s statute mandatorily requires the court to ‘hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole,’ and specifically provides that the court may refuse to accept the death penalty as fixed by the jury and may ‘sentence’ the defendant to death or life without parole. Code of Ala. 1975, § 13-11-4. That section provides that if the court imposes a ‘sentence of death’ it must set forth, in writing, the basis for the sentence.” Jacobs v. State, 361 So. 2d, at 644 (emphasis in original; footnote omitted).
See also Ritter v. State, 429 So. 2d 928, 935-936 (Ala. 1983); Beck v. State, 396 So. 2d, at 659.
B
In this case, moreover, it is clear that the sentencing judge did not interpret the statute as requiring him to consider the jury’s “sentence,” because he never described the “sentence” as a factor in his deliberations. After the jury returned its verdict, the trial judge informed petitioner:
“Let me say this: The jury has found you guilty of the crime of robbery with the aggravated circumstances of intentionally killing the victim . . . and set your punishment at death by electrocution but the law of this state provides first that there will be an additional hearing in this case at which time the Court will consider aggravating circumstances, extenuating and all other circumstances, concerning the commission of this particular offense” (emphasis added). Tr. 249.
In addition, in imposing the sentence, the judge stated:
“The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted” (emphasis added). App. 18.
None of these statements indicates that the judge considered the jury’s verdict to be a factor that he added, or that he was required to add, to the scale in determining the appropriateness of the death penalty, or that he believed the jury’s verdict was entitled to a presumption of correctness. The judge, of course, knew the Alabama system and all that it signified, knew that the jury’s “sentence” was mandatory, and knew that it did not reflect consideration of any mitigating circumstance. The judge logically, therefore, would not have thought that he owed any deference to the jury’s “sentence” on the issue whether the death penalty was appropriate for petitioner.
Ill
Petitioner contends, nevertheless, that a judge’s decision to impose the death penalty must be swayed by the fact that the jury returned a “sentence” of death. He points to this Court’s opinion in Beck v. Alabama, 447 U. S. 625, 645 (1980), which expressed some skepticism about the influence the jury’s “sentence” would have on a judge. Beck held unconstitutional the provision of the 1975 Act that precluded the jury from considering lesser included noncapital offenses. The Court reasoned that the provision violated due process, because where the jury’s only choices were to convict a defendant of the capital offense and “sentence” him to death, or to acquit him, but the evidence would have supported a lesser included offense verdict, the factfinding process was tainted with irrelevant considerations. On the one hand, the Court reasoned, the unavailability of the option of convicting on a lesser included offense may encourage the jury to convict the defendant of a capital crime because it believes that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage the jury to acquit because it believes the defendant does not deserve the death penalty. The unavailability of the lesser included offense option, when it is warranted by the evidence, thus “intro-ducéis] a level of uncertainty and unreliability into the fact-finding process that cannot be tolerated in a capital case.” Id., at 642-643.
In so holding, this Court rejected Alabama’s argument that, even if the unavailability of a lesser included offense led a jury erroneously to convict a defendant, the fact that the judge was the true sentencer would ensure that the defendant was not improperly sentenced to death. It reasoned:
“[I]t is manifest that the jury’s verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. Indeed, according to statistics submitted by the State’s Attorney General, it is fair to infer that the jury verdict will ordinarily be followed by the judge even though he must hold a separate hearing in aggravation and mitigation before he imposes sentence. Under these circumstances, we are unwilling to presume that a post-trial hearing will always correct whatever mistakes have occurred in the performance of the jury’s factfinding function.” Id., at 645-646 (footnote omitted).
This Court’s concern in Beck was that the judge would be inclined to accept the jury’s factual finding that the defendant was guilty of a capital offense, not that the judge would be influenced by the jury’s “sentence” of death. To “correct” an erroneous guilty verdict, the sentencing judge would have to determine that death was an inappropriate punishment, not because mitigating circumstances outweighed aggravating circumstances, but because the defendant had not been proved guilty beyond a reasonable doubt. Obviously, a judge will think hard about the jury’s guilty verdict before basing a sentence on the belief that the defendant was not proved guilty of the capital offense. Indeed, the judge should think hard before rejecting the guilty verdict, because the determination of guilt is properly within the province of the jury, and the jury heard the same evidence regarding guilt as the judge.
It does not follow, however, that the judge will be swayed to impose a sentence of death merely because the jury returned a mandatory death “sentence,” when it had no opportunity to consider mitigating circumstances. The judge knows that determination of the appropriate sentence is not within the jury’s province, and that the jury does not consider evidence in mitigation in arriving at its “sentence.” The jury’s “sentence” means only that the jury found the defendant guilty of a capital crime — that is, that it found the fact of intentional killing in the course of a robbery — and that if the judge finds that the aggravating circumstances outweigh the mitigating circumstances, the judge is authorized to impose a sentence of death. The “sentence” thus conveys nothing more than the verdict of guilty, when it is read in conjunction with the provisions of the 1975 Act making the offense a capital crime, would convey. It defies logic to assume that a judge will be swayed to impose the death penalty by a “sentence” that has so little meaning. Despite its misdescribed label, it is not a sentence of death.
Petitioner also argues that the requirement that the jury return a “sentence” of death “blurs” the issue of guilt with the issue whether death is the appropriate punishment, and may cause the jury arbitrarily to nullify the mandatory death penalty by acquitting a defendant who is proved guilty, but who the jury, without any guidance, finds undeserving of the death penalty. Petitioner’s argument stems from Wood-son, where the plurality opinion noted that American juries “persistently” have refused to convict “a significant portion” of those charged with first-degree murder in order to avoid mandatory death-penalty statutes, and expressed concern that the unguided exercise of the power to nullify a mandatory sentence would lead to the same “wanton” and “arbitrary” imposition of the death penalty that troubled the Court in Furman. 428 U. S., at 302-303. The Alabama scheme, however, has not resulted in such arbitrariness. Juries deliberating under the 1975 statute did not act to nullify the mandatory “sentence” by refusing to convict in a significant number of cases; indeed, only 2 of the first 50 defendants tried for capital crimes during the time the 1975 Act was in effect were acquitted. See Beck v. Alabama, 447 U. S., at 641, n. 18. Thus, while the specter of a mandatory death sentence may have made juries more prone to acquit, thereby benefiting the two defendants acquitted, it did not render Alabama’s scheme unconstitutionally arbitrary.
> I — I
The wisdom and phraseology of Alabama’s curious 1975 statute surely are open to question, as Alabama’s abandonment of the statutory scheme in 1981 perhaps indicates. This Court has made clear, however, that “we are unwilling to say that there is any one right way for a State to set up its capital-sentencing scheme.” Spaziano v. Florida, 468 U. S. 447, 464 (1984). See also Zant v. Stephens, 462 U. S., at 884; Gregg v. Georgia, 428 U. S., at 195 (opinion of Stewart, Powell, and Stevens, JJ.). Alabama’s requirement that the jury return a “sentence” of death along with its guilty verdict, while unusual, did not render unconstitutional the death sentence the trial judge imposed after independently considering petitioner’s background and character and the circumstances of his crime.
The judgment of the Supreme Court of Alabama is affirmed.
It is so ordered.
The originating statute was 1975 Ala. Acts, No. 213, effective March 7, 1976. Act No. 213 was enacted in response to this Court’s decision in Furman v. Georgia, 408 U. S. 238 (1972), and revised the State’s death-penalty statutes. Chapter 11 of Title 13 of the Alabama Code, as it thereafter stood, was repealed in its entirety and replaced by new death-penalty provisions set forth in 1981 Ala. Acts, No. 81-178, effective July 1, 1981. The repeal did not moot the present case because petitioner’s offense was committed and his sentence was imposed in 1977 while the 1975 Act was in effect. See 1981 Ala. Acts, §§19 and 20, codified as Ala. Code, § 13A-5-57 (1982).
Our own research has disclosed no other death-penalty statute currently in effect that requires the jury to return a death “sentence,” but then has the judge make the actual sentencing decision. Indeed, as is noted herein, Alabama has changed its death-penalty scheme and no longer has the requirement.
The sentencing judge found, as an additional aggravating factor, that petitioner had been adjudged delinquent in juvenile proceedings after being charged with kidnaping and rape. The Alabama Court of Criminal Appeals ruled that the delinquency adjudication was not valid as an aggravating circumstance, but held that the judge’s consideration of it was harmless error. 456 So. 2d 117, 125-128 (1983), aff’d, 456 So. 2d 129 (Ala. 1984). That issue was not raised in the petition for certiorari here, and we have no reason to consider it.
Petitioner’s conviction and sentence were affirmed initially by the Alabama Court of Criminal Appeals, 372 So. 2d 26 (1978), and by the Supreme Court of Alabama, 372 So. 2d 32 (1979). This Court, however, 448 U. S. 903 (1980), vacated and remanded the case for reconsideration in the light of Beck v. Alabama, 447 U. S. 625 (1980), which held unconstitutional a clause in Alabama’s 1975 Act that precluded the jury from considering lesser included noncapital offenses. On remand, the Court of Criminal Appeals reversed the judgment of conviction on the basis of Beck. 405 So. 2d 699 (1981). After this Court ruled that due process requires a lesser included offense instruction only when warranted by the evidence, Hopper v. Evans, 456 U. S. 605 (1982), the Court of Criminal Appeals granted rehearing, rescinded its earlier reversal, and reaffirmed petitioner’s conviction and sentence. 456 So. 2d 117 (1983). The Supreme Court of Alabama affirmed that decision, 456 So. 2d 129 (1984), and it is that judgment which we now review.
The Court of Criminal Appeals, as has been noted in the text, must review the decision of a trial court that imposes the death penalty, § 12-22-150, and if that court affirms the sentence, certiorari review by the Supreme Court of Alabama is automatic. Ala. Rule App. Proc. 39(c). Both appellate courts “review . . . the aggravating and mitigating circumstances found in the case by the trial judge” and independently weigh those circumstances to determine whether the imposition of a death sentence is appropriate. Jacobs v. State, 361 So. 2d 640, 647 (Ala. 1978) (Torbert, C. J., concurring in part and dissenting in part), cert. denied, 439 U. S. 1122 (1979); see also Beck v. State, 396 So. 2d. 645, 664 (Ala. 1981). In reviewing petitioner’s sentence, neither appellate court gave any indication of including the jury’s “sentence” in the weighing. In describing its review of petitioner’s sentence, the Court of Criminal Appeals stated:
“We have reviewed the aggravating and mitigating circumstances set out in the record and the trial court’s findings relative to those circumstances. . . . After review of the hearing on aggravating and mitigating circumstances, we find no error on the part of the trial court in reaching the conclusion that the aggravating circumstances far outweigh the mitigating circumstances in this case. The sentence fits the crime.” 372 So. 2d, at 32.
Upon reaffirming petitioner’s conviction in light of Hopper v. Evans, 456 U. S. 605 (1982), the Court of Criminal Appeals again noted its obligation to weigh independently the aggravating and mitigating circumstances, and found that petitioner’s death sentence was appropriate. 456 So. 2d, at 128. The State Supreme Court also found that the “aggravating circumstances greatly outweighed the mitigating circumstances.” 456 So. 2d, at 140.
See § 13-11-6. The 1975 Act required the judge to weigh aggravating circumstances specified in §13-11-6 against mitigating circumstances. The Alabama courts interpreted the Act, however, to require the judge to find the presence of the § 13-ll-2(a) definitional aggravating circumstance (in other words, to agree with the jury’s finding that the defendant is guilty of the offense charged in the indictment) before weighing any § 13-11-6 aggravating circumstances against mitigating circumstances. Ex parte Kyzer, 399 So. 2d 330 (Ala. 1981). Generally, the definitional aggravating circumstances of § 13-ll-2(a) have counterparts in § 13-11-6. Where there is no counterpart, the judge must find the definitional aggravating circumstance or no death sentence can be imposed, even though § 13-11-6 aggravating circumstances outweigh mitigating circumstances. 399 So. 2d, at 337.
In his statement of facts, petitioner asserts that the sentencing judge limited his consideration of mitigating circumstances to those specified by § 13-11-7, in violation of Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion). That issue was not addressed by the Supreme Court of Alabama in the decision under review, and was not raised in the petition for certio-rari. We have no reason to consider the issue here. We note, however, that in its first review of petitioner’s sentence, the Court of Criminal Appeals held that petitioner “was' given the opportunity to present any mitigating circumstance” (emphasis supplied), and that the 1975 Act did not preclude consideration of any aspect of petitioner’s character or of the circumstances of the offense. 372 So. 2d, at 32. We already have noted that the sentencing judge asked petitioner to “tell the judge anything that you feel like might be helpful to you in the position that you find yourself in.” App. 12. Petitioner’s counsel three times asked petitioner while he was on the stand if there was “anything else you would like for the judge to know or to be able to tell him at this point?” Id., at 10-11. Finally, at the conclusion of petitioner’s testimony, the judge asked petitioner’s counsel if he had “anything else that you might be able to offer in the way of mitigating circumstances.” Id., at 14.
We express no view regarding the constitutionality of a death sentence imposed by a judge who did consider the jury’s verdict in this Alabama statutory structure as a factor that weighed in favor of the imposition of the death penalty.
Following this Court’s decisions in Beck v. Alabama, 447 U. S. 625 (1980), and Hopper v. Evans, 456 U. S. 605 (1982), the Supreme Court of Alabama held that in a capital case in which the jury is instructed regarding a lesser included noncapital offense
“the requirement in § 13-ll-2(a), that the jury ‘shall fix the punishment at death’ [is construed] to be permissive and to mean that the jury cannot fix punishment at death until it takes into account the circumstances of the offense together with the character and propensity of the offender, under sentencing procedures which will miminize the risk of an arbitrary and capricious imposition of the death penalty” (emphasis in original). Beck v. State, 396 So. 2d, at 660.
The Alabama Legislature then repealed the 1975 Act, and replaced it with a trifurcated proceeding in which the jury first determines guilt or innocence, and, if it returns a guilty verdict, hears evidence concerning aggravation and mitigation. On the basis of that evidence, the jury issues an advisory sentence. If the verdict is for death, that sentence is not binding on the trial judge, who then is required to hold another hearing regarding aggravating and mitigating circumstances before determining the actual sentence. Ala. Code §§ 13A-5-39 to 13A-5-59 (1982).
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_casetyp1_1-3-1
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J
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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, Plaintiff-Appellee, v. Dan ANDERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Tosun Ates YORUK, Defendant-Appellant.
Nos. 77-5303, 77-5304.
United States Court of Appeals, Sixth Circuit.
Argued June 21, 1978.
Decided Oct. 19, 1978.
Richard D. Heideman, Bob H. Zeman, Louisville, Ky., for defendant-appellant in No. 77-5303.
John T. Carneal, Paducah, Ky. (Court-appointed), for defendant-appellant in No. 77-5304.
Albert Jones, U. S. Atty., James H. Barr, Louisville, Ky., for plaintiff-appellee.
Before PHILLIPS, Chief Judge, and CECIL and PECK, Senior Circuit Judges.
PECK, Senior Circuit Judge.
Appellants Tosun Yoruk and Dan Anderson were jointly tried and found guilty by a jury of participating in a conspiracy to transport marijuana from Florida to Kentucky. They were both sentenced to three years in prison, and have appealed their convictions.
On October 8, 1976, Karl Scarborough and William Boyden were arrested in Ocala, Florida, and charged with possession of marijuana and other drugs. The two gave statements to the Florida police, admitting that they were in Florida to obtain marijuana. They claimed that a Dr. James Am-mons, of Murray, Kentucky, had talked them into making the trip, during a visit to Dr. Ammons’ home. They said that Anderson and Yoruk were also present at the time, and that Anderson had shown them how to use a marijuana “test kit.”
Dr. Ammons was arrested and charged with a variety of drug-related offenses, in-eluding possession and distribution of controlled substances, writing illegal prescriptions, and conspiracy to import marijuana into Kentucky. He was tried separately from Yoruk and Anderson, who were charged only with conspiracy.
Before trial, Yoruk and Anderson both agreed to plead guilty, in return for a Government recommendation of a two-year suspended sentence for Anderson, and a one-year sentence, with all but sixty days suspended, for Yoruk. The district court refused to accept the plea, however, and the two were tried together before a jury.
Yoruk’s principal argument on appeal is that irrelevant, highly prejudicial evidence was introduced against him, requiring a new trial. The Government called an expert witness, Dr. Green, and he was permitted to testify at length about the “evils” of marijuana, the effects of its abuse on users, and about the characteristics of a variety of other controlled substances. Yoruk argues that this highly prejudicial testimony was wholly irrelevant to the question of whether or not he had participated in a conspiracy. He points out that the question of whether marijuana use is bad, morally or physically, was not an issue in this case, since he did not dispute that it is illegal, and no attempt was made to raise a defense that even if the conspiracy was proved, he should not be punished because marijuana is harmless. Indeed, if he had done so, the Government could have properly objected on grounds of irrelevancy.
Dr. Green’s testimony was extensive, covering the use and effects of marijuana, cocaine, and the prescription drugs Cylert and Dilaudid. He testified, with frequent references to the “drug scene” and the “street scene,” that marijuana use can result in a person “going berserk or amuck or . . . paranoid,” by releasing inhibitions. According to Dr. Green, there may be “severe emotional disturbances, panic, anxiety, depression, paranoia, psychosis, hallucinations and disturbances.” Furthermore, marijuana users show “a marked decrease in their motivation, in their personal hygiene. They tend to be sleepy, apathetic, lethargic, disinterested in what’s going on around them, their social relationships frequently deteriorate rapidly. If they’re married, their marital relationships generally deteriorate. ... [A student’s] grades drop off. His personal hygiene drops off. He sleeps, doesn’t care. He is generally irritable, lethargic and indifferent.”
The question of the admissibility of this highly prejudicial sort of testimony in a drug conspiracy case has been recently settled in this Circuit by the decision in United States v. Green, 548 F.2d 1261 (6th Cir. 1977), a case which is indistinguishable from this case. In Green, the defendants were charged with conspiracy to manufacture DMT, a controlled hallucinogenic drug. After testifying that the various chemicals found at the defendants’ home could only be used to manufacture DMT, the Government’s expert witness was permitted to continue on to describe the threat posed by the drug, its bizarre physiological effects upon the body, the procedure through which a drug is classified as a controlled substance, the relationship of DMT to more common abused substances such as LSD, and the “street value” of the drug. This Court, speaking through Judge Celebrezze, held that the trial court “clearly abused its discretion by allowing the Government to introduce extensive expert testimony of both dubious relevance and cumulative prejudicial impact.” Id. at 1268. We agree with the panel in Green that testimony of this kind in a conspiracy case can only “engender vindictive passions within the jury or confuse the issues.” The effects of a drug, no matter how alarming, are wholly irrelevant to the only issue in this case, which is whether Yoruk and Anderson participated in a conspiracy to import marijuana.
The Government argues that the testimony, not only concerning marijuana, but also dealing with the effects of the other drugs and the propriety of Dr. Ammons’ prescription-writing, was relevant to “lend credibility” to the disjointed and contradictory testimony given by Scarborough and Boyden, and to impeach the testimony of the Government’s own witness, Dr. Ammons. To the extent that Dr. Ammons’ testimony wandered into the irrelevant areas of the effects of certain drugs used by himself and his family, the Government’s proper course should have been to ask for a limiting instruction from the trial judge, not to use its own witness’s testimony as an excuse to present improper and highly prejudicial evidence to the jury. In any event, to the extent that the expert testimony was arguably relevant, the Government ignores what is perhaps the most important test of admissibility in a criminal case, whether the potential for unfair prejudice and confusion of the issues outweighs the probative value of the evidence. Green, supra, at 1268. The aura of special reliability and trustworthiness surrounding expert testimony makes this balancing test even more important to ensure a fair trial. On a review of the record, we conclude that the portions of Dr. Green’s testimony challenged by appellant were either wholly irrelevant to the issues presented by this case, or so inordinately prejudicial as to outweigh any possible probative value.
Appellant Dan Anderson has argued that the district court abused its discretion in refusing to accept his guilty plea, forcing him to go to trial and ultimately resulting in a substantially more severe sentence than had been negotiated with the Government. The district judge rejected the plea after a long, confusing exchange with the defendant and his counsel. The ultimate problem at the hearing was that while Anderson was clearly competent, fully aware of the charges against him, and acting in his own best interest by pleading guilty, he insisted that he didn’t “feel guilty,” claiming that he did not have the criminal intent required by the conspiracy charge. He did, however, freely admit to the overt acts charged by the Government, which were more than sufficient to enable a jury to properly infer guilty intent. While we decline to find that the district court abused its discretion in rejecting the plea, and in fact admire the patience of the judge as reflected in the record, we note that we see no barrier to acceptance of the plea under the circumstances of this case. So long as a plea is knowing, voluntary and supported by an adequate factual basis, it is not required that the trial judge obtain an unequivocal confession of guilty intent before a plea may be accepted. Guilty pleas serve a variety of worthwhile, legitimate goals, and are to be encouraged. Delay in the imposition of an appropriate sanction is avoided, and the time and expense of a trial is limited to deciding real disputes, helping to preserve the meaning of our presumption of innocence. Acceptance of the plea offered by Anderson would have been proper, in spite of his equivocation concerning his state of mind. See, for example, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160,. 27 L.Ed.2d 162 (1970), in which the Supreme Court held that a guilty plea should be accepted in a murder case where there is strong evidence of guilt, even though the defendant claimed he had not committed the murder, when the defendant’s alternative was a jury trial with a risk of the death penalty. Anderson’s other contentions on appeal do not require discussion, as they are without substantial merit.
Anderson did not raise the evidentiary issue urged by his codefendant Yoruk in his brief or otherwise prior to oral argument, when Anderson’s counsel attempted to adopt the argument made by Yoruk’s counsel. While it is extremely rare for this Court to consider issues not properly raised and argued before it, we conclude that under the unique circumstances of this case it would be a manifest injustice to allow Anderson’s conviction to stand while ordering a new trial for Yoruk. Fed.R.App.P. 2. Therefore, both convictions are reversed and remanded to the district court for further proceedings consistent with this opinion.
The recent decision by this Court in United States v. Kirk, 584 F.2d 773, (6th Cir., 1978), upheld the conviction of a doctor charged with conspiracy to supply written orders purporting to be prescriptions to others, enabling them to obtain controlled substances for personal use and further distribution. Evidence concerning the manner in which these drugs were used and the effects they produce was introduced at trial. We need not reach the question of admissibility which was involved in that case, because Dr. Kirk had raised the defense that his prescriptions were issued for a lawful, medical purpose, primarily weight control. The evidence objected to tended to show that the drugs involved were subject to abuse if their use was not carefully supervised, and that prescriptions for drugs in the quantities involved could not have been legitimately intended for a medical purpose. The court held that in view of “all of the issues in this case . . this evidence was relevant.” P. -. No such defense was raised in the present case.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
sc_lcdisposition
|
C
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE et al. v. DAVENPORT et ux.
No. 89-156.
Argued February 20, 1990
Decided May 29, 1990
Marshall, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Stevens, Scalia, and Kennedy, JJ., joined. Blackmun, J., filed a dissenting opinion, in which O’Connor, J., joined, post, p. 564.
Walter W. Cohen, First Deputy Attorney General of Pennsylvania, argued the cause for petitioners. With him on the briefs were Ernest D. Preate, Jr., Attorney General, John
G. Knorr III, Chief Deputy Attorney General, Calvin R. Koons, Senior Deputy Attorney General, and Mary Benefield Seiverling, Deputy Attorney General.
David A. Searles argued the cause for respondents. With him on the briefs were Eric L. Frank and Henry J. Sommer.
Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Assistant Attorneys General Dennis and Gerson, Deputy Solicitor General Roberts, and Stephen L. Nightingale; for the State of Alabama et al. by Mary Sue Terry, Attorney General of Virginia, H. Lane Kneedler, Chief Deputy Attorney General, Walter A. McFarlane, Deputy Attorney General, and Jeffrey A. Spencer, Assistant Attorney General, Don Siegelman, Attorney General of Alabama, Robert K. Corbin, Attorney General of Arizona, John K. Van de Kamp, Attorney General of California, Clarine Nardi Riddle, Acting Attorney General of Connecticut, and John J. Kelly, Chief States Attorney, Charles M. Oberly III, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, James T. Jones, Attorney General of Idaho, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Thomas J. Miller, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, Frederic J. Cowan, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, James, E. Tierney, Attorney General of Maine, James M. Shannon, Attorney General of Massachusetts, J. Joseph Curran, Jr., Attorney General of Maryland, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, John P. Arnold, Attorney General of New Hampshire, Peter N. Perretti, Jr., Attorney General of New Jersey, Hal Stratton, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Anthony. Celebrezze, Jr., Attorney General of Ohio, Dave Frohnmayer, Attorney General of Oregon, Jorge E. Perez-Diaz, Solicitor General of Puerto Rico, T. Travis Medlock, Attorney General of South Carolina, Roger A. Tellinghuisen, Attorney General of South Dakota, Charles W. Burson, Attorney General of Tennessee, R. Paul Van Dam, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, Godfrey R. de Castro, Attorney General of the Virgin Islands, and Joseph B. Meyer, Attorney General of Wyoming; for the Council of State Governments et al. by Benna Ruth Solomon and Thomas D. Goldberg; and for the Washington Legal Foundation et al. by Daniel J. Popeo, Paul D. Kamenar, and Richard A. Samp.
Justice Marshall
delivered the opinion of the Court.
In Kelly v. Robinson, 479 U. S. 36, 50 (1986), this Court held that restitution obligations imposed as conditions of probation in state criminal actions are nondischargeable in proceedings under Chapter 7 of the Bankruptcy Code, 11 U. S. C. §701 et seq. The Court rested its holding on its interpretation of the Code provision that protects from discharge any debt that is “a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.” § 523(a)(7). Because the Court determined that restitution orders fall within § 523(a)(7)’s exception to discharge, it declined to reach the question whether restitution orders are “debt[s]” as defined by §101(11) of the Code. In this case, we must decide whether restitution obligations are dischargeable debts in proceedings under Chapter 13, § 1301 et seq. The exception to discharge relied on in Kelly does not extend to Chapter 13. We conclude, based on the language and structure of the Code, that restitution obligations are “debt[s]” as defined by §101(11). We therefore hold that such payments are dis-chargeable under Chapter 13.
I
In September 1986, respondents Edward and Debora Davenport pleaded guilty in a Pennsylvania court to welfare fraud and were sentenced to one year’s probation. As a condition of probation, the state court ordered the Davenports to make monthly restitution payments to the county probation department, which in turn would forward the payments to the Pennsylvania Department of Public Welfare, the victim of the Davenports’ fraud. Pennsylvania law mandates restitution of welfare payments obtained through fraud, Pa. Stat. Ann., Tit. 62, §481(c) (Purdon Supp. 1989), and directs the probation section to “forward to the victim the property or payments made pursuant to the restitution order,” 18 Pa. Cons. Stat. § 1106(e) (1988).
In May 1987, the Davenports filed a petition under Chapter 13 in the United States Bankruptcy Court for the Eastern District of Pennsylvania. In their Chapter 13 statement, they listed their restitution obligation as an unsecured debt payable to the Department of Public Welfare. Soon thereafter, the Adult Probation and Parole Department of Bucks County (Probation Department) commenced a probation violation proceeding, alleging that the Davenports had failed to comply with the restitution order. The Davenports informed the Probation Department of the pending bankruptcy proceedings and requested that the Department withdraw the probation violation charges until the bankruptcy issues were settled. The Probation Department refused, and the Davenports filed an adversary action in Bankruptcy Court seeking both a declaration that the restitution obligation was a dischargeable debt and an injunction preventing the Probation Department from undertaking any further efforts to collect on the obligation.
While the adversary action was pending, the Bankruptcy Court confirmed the Davenports’ Chapter 13 plan without objection from any creditor. Although notified of the proceedings, neither the Probation Department nor the Department of Public Welfare filed a proof of claim in the bankruptcy action. Meanwhile, the Probation Department proceeded in state court on its motion to revoke probation. Although the court declined to revoke the Davenports’ probation and extended their payment period, it nonetheless ruled that its restitution order remained in effect.
The Bankruptcy Court subsequently held that the Davenports’ restitution obligation was an unsecured debt dis-chargeable under 11 U. S. C. § 1328(a). 83 B. R. 309 (ED Pa. 1988). On appeal, the District Court reversed, holding that state-imposed criminal restitution obligations cannot be discharged in a Chapter 13 bankruptcy. 89 B. R. 428 (ED Pa. 1988). The District Court emphasized the federalism concerns that are implicated when federal courts intrude on state criminal processes, id., at 430, and relied substantially on dicta in Kelly, supra, at 50, where the Court expressed “serious doubts whether Congress intended to make criminal penalties ‘debts’ ” under the Code. The Court of Appeals for the Third Circuit reversed, concluding that “the plain language of the chapter” demonstrated that restitution orders are debts within the meaning of the Code and hence dis-chargeable in proceedings under Chapter 13. In re Johnson-Alien, 871 F. 2d 421, 428 (1989).
To address a conflict among Bankruptcy Courts on this issue, we granted certiorari, 493 U. S. 808 (1989).
II
Our construction of the term “debt” is guided by the fundamental canon that statutory interpretation begins with the language of the statute itself. Landreth Timber Co. v. Landreth, 471 U. S. 681, 685 (1985). Section 101(11) of the Bankruptcy Code defines “debt” as a “liability on a claim.” This definition reveals Congress’ intent that the meanings of “debt” and “claim” be coextensive. See also H. R. Rep. No. 95-595, p. 310 (1977); S. Rep. No. 95-989, p. 23 (1978). Thus, the meaning of “claim” is crucial to our analysis. A “claim” is a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U. S. C. §101(4)(A) (emphasis added). As is apparent, Congress chose expansive language in both definitions relevant to this case. For example, to the extent the phrase “right to payment” is modified in the statute, the modifying language (“whether or not such right is . . .”) reflects Congress’ broad rather than restrictive view of the class of obligations that qualify as a “claim” giving rise to a “debt.” See also H. R. Rep. No. 95-595, supra, at 309 (describing definition of “claim” as “broadest possible” and noting that Code “contemplates that all legal obligations of the debtor . . . will be able to be dealt with in the bankruptcy case”); accord, S. Rep. No. 95-989, supra, at 22.
Petitioners maintain that a restitution order is not a “right to payment” because neither the Probation Department nor the victim stands in a traditional creditor-debtor relationship with the criminal offender. In support of this position, petitioners refer to Kelly’s discussion of the special purposes of punishment and rehabilitation underlying the imposition of restitution obligations. 479 U. S., at 52. Petitioners also emphasize that restitution orders are enforced differently from other obligations that are considered “rights to payment.”
In Kelly, the Court decided that restitution orders fall within 11 U. S. C. § 523(a)(7)’s exception to discharge provision, which protects from discharge any debt “to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.” In reaching that conclusion, the Court necessarily found that such orders are “not compensation for actual pecuniary loss.” Rather, “[bjecause criminal proceedings focus on the State’s interests in rehabilitation and punishment,” the Court held that “restitution orders imposed in such proceedings operate ‘for the benefit of’ the State” and not “‘for . . . compensation’ of the victim.” 479 U. S., at 53.
Contrary to petitioners’ argument, however, the Court’s prior characterization of the purposes underlying restitution orders does not bear on our construction of the phrase “right to payment” in § 101(4)(A). The Court in Kelly analyzed the purposes of restitution in construing the qualifying clauses of § 523(a)(7), which explicitly tie the application of that provision to the purpose of the compensation required. But the language employed to define “claim” in § 101(4)(A) makes no reference to purpose. The plain meaning of a “right to payment” is nothing more nor less than an enforceable obligation, regardless of the objectives the State seeks to serve in imposing the obligation.
Nor does the State’s method of enforcing restitution obligations suggest that such obligations are not “claims.” Although neither the Probation Department nor the victim can enforce restitution obligations in civil proceedings, Commonwealth v. Mourar, 349 Pa. Super. 583, 603, 504 A. 2d 197, 208 (1986), vacated and remanded on other grounds, 517 Pa. 83, 534 A. 2d 1050 (1987), the obligation is enforceable by the substantial threat of revocation of probation and incarceration. That the Probation Department’s enforcement mechanism is criminal rather than civil does not alter the restitution order’s character as a “right to payment.” Indeed, the right created by such an order made as a condition of probation is in some sense greater than the right conferred by an ordinary civil obligation, because it is secured by the debtor’s freedom rather than his property. Accordingly, we do not regard the purpose or enforcement mechanism of restitution orders as placing such orders outside the scope of § 101(4)(A).
Ill
Moving beyond the language of § 101, the United States, appearing as amicus in support of petitioners, contends that other provisions in the Code, particularly the exemption to the automatic stay provision, § 362(b)(1), and Chapter 7’s distribution of claims provision, § 726, reflect Congress’ intent to exempt restitution orders from discharge under Chapter 13. We are not persuaded, however, that the language or the structure of the Code as a whole supports that conclusion.
Section 362(a) automatically stays a wide array of collection and enforcement proceedings against the debtor and his property. Section 362(b)(1) exempts from the stay “the commencement or continuation of a criminal action or proceeding against the debtor.” According to the Senate Report, the exception from the automatic stay ensures that “[t]he bankruptcy laws are not a haven for criminal offenders.” S. Rep. No. 95-989, supra, at 51. Section 362(b)(1) does not, however, explicitly exempt governmental efforts to collect restitution obligations from a debtor. Cf. 11 U. S. C. § 362(b)(2) (“collection of alimony, maintenance, or support” is not barred by the stay). Nonetheless, the United States argues that it would be anomalous to construe the Code as eliminating a haven for criminal offenders under the automatic stay provision while granting them sanctuary from restitution obligations under Chapter 13.
We find no inconsistency in these provisions. Section 362(b)(1) ensures that the automatic stay provision is not construed to bar federal or state prosecution of alleged criminal offenses. It is not an irrational or inconsistent policy choice to permit prosecution of criminal offenses during the pend-ency of a bankruptcy action and at the same time to preclude probation officials from enforcing restitution orders while a debtor seeks relief under Chapter 13. Congress could well have concluded that maintaining criminal prosecutions during bankruptcy proceedings is essential to the functioning of government but that, in the context of Chapter 13, a debtor’s interest in full and complete release of his obligations outweighs society’s interest in collecting or enforcing a restitution obligation outside the agreement reached in the Chapter 13 plan.
The United States’ reliance on § 726 is likewise unavailing. That section establishes the order in which claims are settled under Chapter 7. Section 726(a)(4) assigns a low priority to “any allowed claim, whether secured or unsecured, for any fine, penalty, or forfeiture ... to the extent that such fine, penalty, forfeiture, or damages are not compensation for actual pecuniary loss suffered by the holder of such claim.” The United States argues that the phrase “fine, penalty, or forfeiture” should be construed to apply only to civil fines, penalties, and forfeitures, and not to criminal restitution obligations. Otherwise, State and Federal Governments will receive disfavored treatment relative to other creditors both in Chapter 7 and Chapter 13 proceedings, see § 1325(a)(4) (a Chapter 13 plan must ensure that unsecured creditors receive no worse treatment than they would under Chapter 7), a result the United States regards as anomalous given the strength of the governmental interest in collecting restitution payments.
The central difficulty with the United States’ construction of § 726(a)(4) is that it conflicts with Kelly’s holding that § 523(a)(7), the exception to discharge provision, applies to criminal restitution obligations. 479 U. S., at 51 (§ 523(a)(7) “creates a broad exception for all penal sanctions”). The United States acknowledges that the phrase “fine, penalty, or forfeiture” as it appears in § 726(a)(4) must have the same meaning as in § 523(a)(7). We are unwilling to revisit Kelly’s determination that § 523(a)(7) “protects traditional criminal fines [by] codif[ying] the judicially created exception to discharge for fines.” Ibid, (emphasis added). Thus, we reject the view that §§ 523(a)(7) and 726(a)(4) implicitly refer only to civil fines and penalties.
The United States’ position here highlights the tension between Kelly’s, interpretation of § 523(a)(7) and its dictum suggesting that restitution obligations are not “debts.” See supra, at 557. As stated above, Kelly found explicitly that § 523(a)(7) “codifies the judicially created exception to discharge” for both civil and criminal fines. 479 U. S., at 51. Had Congress believed that restitution obligations were not “debts” giving rise to “claims,” it would have had no reason to except such obligations from discharge in § 523(a)(7). Given Kelly’s interpretation of § 523(a)(7), then, it would be anomalous to construe “debt” narrowly so as to exclude criminal restitution orders. Such a narrow construction of “debt” necessarily renders § 523(a)(7)’s codification of the judicial exception for criminal restitution orders mere surplusage. Our cases express a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment. See, e. g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837 (1988).
Moreover, in locating Congress’ policy choice regarding the dischargeability of restitution orders in § 523(a)(7), Kelly is faithful to the language and structure of the Code: Congress defined “debt” broadly and took care to except particular debts from discharge where policy considerations so warranted. Accordingly, Congress secured a broader discharge for debtors under Chapter 13 than Chapter 7 by extending to Chapter 13 proceedings some, but not all, of § 523(a)’s exceptions to discharge. See 5 Collier on Bankruptcy ¶ 1328.01 [l][c] (15th ed. 1986) (“[T]he dischargeability of debts in chapter 13 that are not dischargeable in chapter 7 represents a policy judgment that [it] is preferable for debtors to attempt to pay such debts to the best of their abilities over three years rather than for those debtors to have those debts hanging over their heads indefinitely, perhaps for the rest of their lives”) (footnote omitted). Among those exceptions that Congress chose not to extend to Chapter 13 proceedings is § 523(a)(7)’s exception for debts arising from a “fine, penalty, or forfeiture.” Thus, to construe “debt” narrowly in this context would be to override the balance Congress struck in crafting the appropriate discharge exceptions for Chapter 7 and Chapter 13 debtors.
IV
Our refusal to carve out a broad judicial exception to discharge for restitution orders does not signal a retreat from the principles applied in Kelly. We will not read the Bankruptcy Code to erode past bankruptcy practice absent a clear indication that Congress intended such a departure. Kelly, supra, at 47 (citing Midlantic National Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494 (1986)). In Kelly, the Court examined pre-Code practice and identified a general reluctance “to interpret federal bankruptcy statutes to remit state criminal judgments.” 479 U. S., at 44. This pre-Code practice informed the Court’s conclusion that § 523(a)(7) broadly applies to all penal sanctions, including criminal fines. Here, on the other hand, the statutory language plainly reveals Congress’ intent not to except restitution orders from discharge in certain Chapter 13 proceedings. This intent is clear from Congress’ decision to limit the exceptions to discharge applicable to Chapter 13, § 1328(a), as well as its adoption of the “broadest possible” definition of “debt” in § 101(11). See supra, at 558.
Nor do we conclude lightly that Congress intended to interfere with States’ administration of their criminal justice systems. Younger v. Harris, 401 U. S. 37, 46 (1971). As the Court stated in Kelly, permitting discharge of criminal restitution obligations may hamper the flexibility of state criminal judges in fashioning appropriate sentences and require state prosecutors to participate in federal bankruptcy proceedings to safeguard state interests. 479 U. S., at 49. Certainly the legitimate state interest in avoiding such intrusions is not lessened simply because the offender files under Chapter 13 rather than Chapter 7. Nonetheless, the concerns animating Younger cannot justify rewriting the Code to avoid federal intrusion. Where, as here, congressional intent is clear, our sole function is to enforce the statute according to its terms.
V
Restitution obligations constitute debts within the meaning of § 101(11) of the Bankruptcy Code and are therefore dis-chargeable under Chapter 13. The decision of the Court of Appeals is affirmed.
It is so ordered.
The Davenports subsequently fulfilled their obligations under the plan and received a discharge pursuant to 11 U. S. C. § 1328(a), which provides: “As soon as practicable after completion by the debtor of all payments under the plan, unless the court approves a written waiver of discharge executed by the debtor after the order for relief under this chapter, the court shall grant the debtor a discharge of all debts provided for by the plan or disallowed under section 502 of this title.” The section contains two exceptions that the parties agree are not applicable to this case.
Compare, e. g., In re Kohr, 82 B. R. 706, 712 (MD Pa. 1988) (restitution obligations are not “debts” within the meaning of the Code), with In re Cullens, 77 B. R. 825, 828 (Colo. 1987) (restitution orders are “debts”).
Although the automatic stay protects a debtor from various collection efforts over a specified period, it does not extinguish or discharge any debt. See generally 1 W. Norton, Bankruptcy Law and Practice §§20.04-20.36 (1986 and Supp. 1989).
In any event, the Government’s contention that Congress must have intended to favor criminal, as opposed to civil, claims held by the government is unsubstantiated. The United States’ view about the wisdom of this policy choice, unsupported by any textual authority that Congress in fact adopted such a policy, is an inadequate basis for rejecting the statute’s broad definition of “debt.” See supra, at 557-558.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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songer_genresp1
|
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.
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.
Barbara QUACKENBUSH, for herself and on behalf of her infant son, Jason Gambee, Plaintiff-Appellee, v. JOHNSON CITY SCHOOL DISTRICT, and Caspar Rowlind, Administrator for the Johnson City School District, individually and in his official capacity, Defendants-Appellants.
No. 691, Docket 82-7695.
United States Court of Appeals, Second Circuit.
Argued Jan. 24, 1983.
Decided Aug. 24, 1983.
Ronald R. Benjamin, Binghamton, N.Y., for plaintiff-appellee.
Edward J. Sarzynski, Binghamton, N.Y. (Hogan & Sarzynski, Binghamton, N.Y., of counsel), for defendants-appellants.
Elizabeth L. Schneider, Rochester, N.Y. (Statewide Youth Advocacy, Inc., Rochester, N.Y., of counsel, David A. Monroe, Western N.Y., Protection and Advocacy Office for the Developmental^ Disabled, Neighborhood Legal Services, Inc., Buffalo, N.Y., Gerald P. Seipp, Serotte, Harasyn, Reich & Goldstein, Buffalo, N.Y., on brief), for amicus curiae.
Before OAKES, PRATT and WEIS, Circuit Judges.
Of the United States Court of Appeals for the Third Circuit, sitting by designation.
GEORGE C. PRATT, Circuit Judge:
Defendants appeal by permission granted under 28 U.S.C. § 1292(b) from an order of the Northern District of New York, Howard G. Munson, Chief Judge, denying defendants’ motion to dismiss plaintiff’s complaint seeking damages under the Education of the Handicapped Act, 20 U.S.C. §§ 1400 et seq. (EHA), the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiff brought the action on behalf of herself and her infant son, Jason Gambee, a handicapped child, seeking damages from the defendant school district and one of its administrators, Caspar Rowlind, who at all relevant times was chairman of the school district’s Committee on the Handicapped (COH), for depriving Jason of his federally guaranteed “right to a free appropriate public education”. 20 U.S.C. § 1412(1).
THE COMPLAINT
Since the issue before us is whether the court below erred in denying the motion to dismiss, we accept as true, for purposes of the appeal, the facts alleged in the complaint. Those facts and the reasonable inferences to be drawn therefrom can be stated briefly. Jason was placed in a regular kindergarten class in the defendant district in September 1978, although the district then knew or should have known that he was a handicapped child in need of special educational services. Plaintiff Quackenbush, Jason’s mother, took no action at that time because district employees told her to wait until the following year. However, during the following year Jason repeated kindergarten, again in a regular classroom setting.
Concerned about her son’s lack of progress in the second year, Quackenbush had Jason evaluated by a psychologist who recommended that he be classified as learning disabled. A copy of the psychologist’s evaluation was sent to the district’s COH in April 1980. In June 1980 Quackenbush requested that Jason be reviewed by the COH. Immediately thereafter, defendant Rowlind came to Quackenbush’s home with a “parental permission form” which Quackenbush filled in. On instructions of defendant Rowlind, Quackenbush left blank the area to be checked with respect to giving permission to conduct an evaluation of Jason. Rowlind took the form.
Although the complaint does not allege what action the school district took on plaintiff’s request for special services, we infer that the district took no action whatsoever from that time forward. We also infer from the allegations that the district took no action on the request because Rowlind, without plaintiff’s authority, put a check mark on the form in the box indicating that she denied the district permission to conduct an evaluation of Jason. Plaintiff alleges that Rowlind altered the form “for the sole purpose of denying [Jason] the special education he is entitled to.” She further alleges that he acted pursuant to a policy of the defendant school district to refuse special education to handicapped children for financial reasons. As a result Jason was denied the special education to which he was entitled, suffered damages to his intellect, emotional capacity, and personality, and was impeded in acquiring necessary training. In addition, plaintiff alleges that she moved to a different school district to get the services Jason needed and that she herself suffered emotional distress.
Plaintiff seeks damages under five causes of action: (1) that defendants’ failure to properly and timely identify Jason as a handicapped child and to provide him with special education violated plaintiff’s rights under the EHA; (2) that defendants’ actions violated Jason’s rights under the Rehabilitation Act; (3) that defendants’ actions, taken under color of law, deprived Jason of his right to “an appropriate public special education” pursuant to a policy of refusing to provide learning disabled children with the special services they require; (4) that defendants’ actions created two classes of learning disabled children, those who receive special education and those who do not, thereby depriving Jason of equal protection of the law; and (5) that defendant Rowlind’s false and malicious conduct in cheating plaintiff and Jason of their rights violated the constitution.
Defendants moved in the district court to dismiss the complaint, arguing that plaintiff’s claim that Jason was denied needed educational services did not state a claim under 42 U.S.C. § 1983, that plaintiff failed to exhaust her administrative remedy, and that the EHA provided an exclusive remedial scheme which plaintiff could not circumvent either by moving to another school district or by asserting her claims under § 1983.
DECISION BELOW
The district court denied defendants’ motion to dismiss and held that plaintiff had sufficiently alleged claims under § 1983. After noting that § 1983 permits a litigant to recover for the deprivation of any federal right whether rooted in statute or constitution, the district court addressed the deprivations alleged under the EHA, the Rehabilitation Act, and the due process and equal protection clauses of the constitution.
As to the EHA, the district court found sufficient the broad assertion that defendants were on notice that Jason had a handicapping condition but did nothing. As to the Rehabilitation Act, the court stated, inaccurately, that the complaint alleged that Jason had been excluded from the public schools solely because of his learning disability. Actually, the complaint does not allege exclusion from the public schools, but only exclusion from “a free and appropriate special education”. As to the constitutional claims, the court found, without analysis, sufficient allegations of violations of procedural due process and equal protection guarantees to support a § 1983 action. The district court also rejected defendants’ argument that plaintiff was required to exhaust available administrative remedies because it found that plaintiff, having left the school district, had no administrative remedies to exhaust and that damages, the only relief sought by plaintiff, were not available through the administrative process.
Finally, the district court addressed defendants’ contention that the EHA provides an exclusive injunctive remedy which bars use of enforcement through § 1983. Relying primarily on the “plain language of the statute” that under the EHA the court “shall grant such relief as [it] determines is appropriate”, the district court rejected the conclusion of the Seventh Circuit in Anderson v. Thompson, 658 F.2d 1205 (7th Cir. 1981), and held that the EHA remedy was neither exclusive nor limited to injunctive relief. On the contrary, the district court held, violation of plaintiff’s rights under the EHA may give rise to a cause of action for damages that is enforceable under § 1983. Accordingly, the district court denied defendants’ motion to dismiss.
On defendants’ request, the district court amended its order and certified, pursuant to 28 U.S.C. § 1292(b), that the order involved controlling questions of law as to which there is substantial ground for difference of opinion, and that an immediate appeal would materially advance the ultimate termination of the litigation. The specific legal questions identified were:
(a.) whether the [EHA] provides an exclusive private right of action for complaints involving educational services for handicapped students;
(b.) whether the [EHA] provides to aggrieved plaintiffs as an exclusive remedy for its violation injunctive relief only, with no right to compensatory damages or attorneys’ fees; and
(c.) whether administrative remedies need not be exhausted when plaintiffs no longer reside in the defendant-school district.
In its order of amendment the district court noted that both the Seventh Circuit in Anderson v. Thompson, and another judge of the Northern District of New York in Davis v. Maine-Endwell Central School District, 542 F.Supp. 1257 (N.D.N.Y.1982), had held that the remedy provided under the EHA is exclusive and limited to injunctive relief only. We granted leave to appeal.
DISCUSSION
We are presented with a problem of statutory construction which focuses specifically on whether Congress intended damages to be an available remedy for the type of violation of the EHA alleged here, and if so, whether those damages are recoverable only in an action brought under 20 U.S.C. § 1415(e)(2), or whether they may be recoverable in an action brought under 42 U.S.C. § 1983. The chief practical difference between the two statutes is that the latter carries with it an express authorization for the recovery of attorney’s fees in 42 U.S.C. § 1988, while the former does not.
Before focusing upon Congress’s intent with respect to remedies, we review briefly the general purpose and structure of the EHA. The Education for All Handicapped Children Act (now the “Education of the Handicapped Act”, 20 U.S.C. § 1400(a) (Supp. V 1981)) was enacted in 1975, Pub.L. 94-142, 89 Stat. 773, in response to Congress’s concern that “[m]ore than half of all handicapped children in the United States are not receiving an education appropriate to their needs * * * [and that] [o]ne million children * * * are receiving no education at all.” H.R.Rep. No. 332, 94th Cong., 1st Sess. 7 (1975). The statute, a successor to the Education for the Handicapped Act of 1970, Pub.L. 91-230, 84 Stat. 119, and the Education Amendments of 1974, Pub.L. 93-380, 88 Stat. 484, was aimed primarily at providing handicapped children with access to public education. Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 3043, 73 L.Ed.2d 690 (1982).
To accomplish this goal, the EHA provides federal funding to state and local education agencies for educating handicapped children, 20 U.S.C. § 1411, sets conditions for eligibility for the receipt of these funds, § 1412, requires eligible states to submit plans outlining their policies and procedures for compliance, § 1413, and provides for withholding federal funding if the Commissioner of Education determines that the state or local education agency has failed to comply substantially with the eligibility conditions, or with its state plan, § 1416. If a state is dissatisfied with the commissioner’s disapproval of its state plan, or other action with respect to the plan, it may seek review of that action in the appropriate circuit court, § 1416.
The EHA requires that a local education agency, to be eligible for funding, provide a “free appropriate public education”, defined in part as “special education and related services”, § 1401(18), to those children who are handicapped within the meaning of the statute, § 1401(1). An “individualized education program” (I.E.P.), § 1401(19), must be developed for each child, and the program must be reviewed and, if necessary, revised at least annually, § 1414(a)(5).
At the heart of the statute, and particularly germane to the issues before us, are the procedural safeguards required by § 1415 in the statute’s blueprint for state and local programs. Those safeguards encompass both administrative and judicial proceedings. On the administrative level they must include, but are not limited to: the opportunity for a parent or guardian of a handicapped child to examine the child’s records and to obtain an independent educational evaluation of the child, § 1415(b)(1)(A); written prior notice to the parent or guardian whenever the school district proposes or refuses to initiate or change the child’s identification, evaluation, or placement, § 1415(b)(1)(C); a requirement that, when feasible, parents be informed in their native language of all the procedures available under the section, § 1415(b)(1)(D); and “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child”, § 1415(b)(1)(E). A parent who has filed such a complaint has the opportunity for an impartial due process hearing, § 1415(b)(2), and “any party aggrieved by the findings and decision” of that hearing, may appeal to the state educational agency for an impartial review, § 1415(c). Parties to the administrative hearings have the rights to be advised by counsel and by individuals with special knowledge or training in the problems of handicapped children, to present evidence, to confront, cross-examine, and compel the attendance of witnesses, to a record of the hearing, and to written findings of fact and decisions, § 1415(d).
A decision at the end of the administrative process is final except for the judicial review authorized by § 1415(e)(2). That judicial review is available to “any party aggrieved by the findings and decision” at the administrative level. Such an aggrieved party may bring a civil action “with respect to the complaint” presented pursuant to § 1415. The action may be brought in state court or in a United States district court, which “shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” § 1415(e)(2).
In enacting the statute, Congress hoped to assist the states in identifying and evaluating handicapped children and providing them with a free appropriate public education. “The purpose of the pending measure is to ensure that all handicapped children have available to them a free appropriate education * * * and * * * to relieve the fiscal burden placed upon the states and localities.” 121 Cong.Rec.S. 37417 (daily ed. Nov. 19, 1975) (statement of Sen. Schweiker); see Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 3048, 73 L.Ed.2d 690 (1982) (“Congress sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education”). To achieve this goal, Congress passed what it perceived as “a series of comprehensive and carefully thought out provisions”, 121 Cong.Rec.S. 37413 (daily ed. Nov. 19, 1975), (statement of Sen. Williams), which “set forth a comprehensive program to meet the unmet needs of all handicapped children”, id. at 37416. Representatives and senators alike believed that the legislation represented a comprehensive and far-reaching approach to providing appropriate educational services for handicapped children. “[T]his legislation * * * will prove to be the long awaited step towards a national program to ensure quality education to all handicapped Americans * * * ”. 121 Cong.Rec.H. 37029 (daily ed. Nov. 18, 1975) (statement of Rep. Conte).
The procedural protections, in particular, were seen as an important and comprehensive means of achieving the goals of the statute. Representative Perkins, chairman of the House Committee on Labor and Education, spoke of the procedural safeguards as “designed to further the congressional goal of ensuring a full educational opportunity for all handicapped children.” Id. at H. 37025. Apparently Congress intended the court to have a significant role in achieving the substantive goals of the statute for it provided that the court may take additional evidence and base its decision “on the preponderance of the evidence”. However, in Hendrick Hudson, the Supreme Court rejected a standard of de novo review, saying “the provision that a reviewing court base its decision on the ‘preponderance of the evidence’ is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” 102 S.Ct. at 3051.
In its attempt to guarantee a “free appropriate public education” to all handicapped children, the EHA establishes substantive rights and procedural safeguards. The substantive right to a free appropriate public education has been interpreted by the Supreme Court to mean
personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade level used in the State’s regular education, and must comport with the child’s IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.
Id. 102 S.Ct. at 3049 (footnote omitted).
It would have been extraordinarily difficult, if not impossible, for Congress to have been more precise in defining the special educational needs of particular handicapped children. Instead, Congress sought through its procedural safeguards to open the channels of communication between the parents of each child and the school administrators with a view toward developing the most appropriate program for each particular child. We thus are presented with an unusually detailed description of the administrative procedures required of a school district, and compliance with those procedural safeguards is an essential step in achieving the statutory goal of a free appropriate public education.
We have no difficulty with the question of whether the judicial review contemplated by § 1415(e)(2) is the exclusive means for reviewing a final administrative decision under the EHA. We think it is. Congress provided in § 1415 an elaborate, precisely defined administrative and judicial enforcement system. The communication, cooperation, and exchange of ideas needed to develop a particular child’s I.E.P. are greatly facilitated by adherence to the administrative procedures outlined in the statute. On the other hand, permitting separate judicial relief under § 1983 as an alternative to use of the administrative-judicial scheme established in § 1415 would undercut significantly the objectives sought by Congress in enacting the EHA. In these circumstances, we think that the judicial review provided by § 1415(e)(2) is an exclusive remedy that can neither be supplemented nor replaced by an action under 42 U.S.C. § 1983. See Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); CETA Workers’ Organizing Committee v. City of New York, 617 F.2d 926, 933-34 (2d Cir.1980).
This view, however, does not dispose of the appeal, because the judicial review provided by § 1415(e)(2) is not available in the circumstances alleged here. Plaintiff has not proceeded through the administrative stages; indeed, her complaint is that through a policy of the school district she was deprived of the opportunity to take advantage of the procedural safeguards offered by the statute. She alleges that defendant Rowlind induced her to leave blank the answer to the question of whether she would permit Jason to be evaluated and then, without her authority, substituted a negative answer to the question. In these circumstances, plaintiff is not eligible for judicial review under the EHA because she is not a “party aggrieved by the findings and decision” following an impartial due process hearing in the state educational system. Clearly then, plaintiff is not expressly granted any right of judicial review under § 1415.
Nor does the legislative history suggest a particular remedy for interference with the procedural safeguards. However, it is unthinkable that Congress would have intended that a plaintiff such as Quackenbush, who as the case presented itself sought for two years to have the school district provide services, made a direct request for evaluation, and was deprived of that request by school district forgery, should be left without any remedy. Particularly in a statutory scheme such as the EHA where great emphasis is placed upon procedural safeguards, we must assume that Congress intended some kind of relief when, through school district policy or misconduct of school officials or both, a handicapped child is deprived of the procedural safeguards guaranteed by § 1415. Assuming, then, that Congress intended a remedy here, the question remains whether that remedy, which all parties to this appeal assume to exist, is to be implied in § 1415(e)(2), or whether it is to be found in § 1983, which guarantees a citizen relief from state deprivations of federally granted rights.
Section 1983 is a general remedial statute aimed at preventing lawlessness by state and local governments. Defendants’ deliberate interference with procedural safeguards guaranteed by Congress for the purpose of depriving Jason of special educational services necessary to provide him with free appropriate public education would constitute the deprivation of a right guaranteed under federal law within the meaning of § 1983. Section 1983 is available to enforce both statutory and constitutional rights. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980).
After examining both statutes as well as the circumstances of this case, we believe and conclude that the better solution is to permit § 1983 to supply the right of action to a plaintiff who has been denied procedural safeguards under § 1415 and who, as a result thereof, has not received the findings and decision following the impartial due process administrative hearing contemplated by § 1415. In Hymes v. Harnett County Board of Education, 664 F.2d 410 (4th Cir.1981) the Fourth Circuit viewed the absence of any prescribed remedy in the EHA for deprivations occurring prior to a final administrative decision as a “lacuna” to be filled by § 1983. Id. at 413. Essentially, we agree with that approach. By limiting relief under § 1415(e)(2) only to parties aggrieved by the findings and decision of the administrative agency, Congress rather clearly disclosed its intention that that section not be used to provide relief for procedural deprivations whose effect was to prevent a handicapped child from ever reaching the stage of a final administrative determination. Because of the availability of § 1983 to remedy such deprivations of the procedural rights granted by the statute, it was unnecessary for Congress to provide a separate scheme of judicial relief for plaintiffs who never reach the stage of “findings and decision” due to defendants’ misconduct.
In short, the district court did not err in refusing to dismiss, because, as we have interpreted the complaint, it sets forth a cause of action against the school district under § 1983 for compensatory damages based upon its alleged policy to avoid providing expensive special educational services by preventing handicapped children from gaining access to the procedural safeguards guaranteed by the statute. See Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Defendant Rowlind’s conduct, if established at trial as it is alleged, could render him personally liable for both compensatory and punitive damages. Unlike Rowlind, of course, the school district could not be held liable for punitive damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981).
The district court also identified for interlocutory review the problem of whether administrative remedies need to be exhausted by a plaintiff who no longer resides in the school district. While the issue had once been in doubt, the Supreme Court has now ruled that a plaintiff need not exhaust state administrative remedies before bringing an action under § 1983. Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). The lack of an exhaustion requirement, however, helps to focus the nature of plaintiff’s grievance. She claims that defendants’ conduct deprived her of access to the procedural safeguards that Congress intended be available through the administrative structure. As a result, because Jason was not getting the free appropriate public education to which he was entitled, plaintiff moved to a neighboring district in order to obtain the special services needed to secure him that education. We express no opinion on what damages, if any, plaintiff might be entitled to recover should she prove her allegations. We find it fitting, however, that defendants should be required to respond in damages for those injuries caused by their conduct which deprived plaintiffs of access to the administrative system and procedural safeguards guaranteed to them by Congress. It is equally fitting that defendant Rowlind respond in punitive damages if, for the purpose of depriving Jason of special education services, he falsely recorded on her form that plaintiff did not consent to an evaluation of Jason.
Our conclusion is consistent with the result in Anderson v. Thompson, 658 F.2d 1205 (7th Cir.1981), which held that the remedy under § 1415(e)(2) excluded and was inconsistent with § 1983 relief. At issue before the Anderson court was review of the state administrative placement decision. As previously indicated, when the state administrative process has run its course concluding in findings and a decision, we agree that Congress intended the remedy under § 1415(e)(2) to be exclusive.
Our decision in Hastings v. Maine-End-well Central School District, 676 F.2d 893 (2d Cir.1982), is also consistent with our decision today. There, on an appeal from an award of attorney’s fees under 42 U.S.C. § 1983, the issue was whether the underlying claim arose under § 1983. Holding that it did, we focused upon the school district’s abuse of the due process procedural safeguards accorded to parents of handicapped children:
The district court’s order granting the injunction stated that the School District had “chosen to abuse the due process procedural safeguards” accorded to parents of handicapped children * * *, and this Court affirmed the injunction, observing that “[t]he present action is not pending under the EHA, but rather is brought pursuant to 42 U.S.C. § 1983 to recover for the asserted violation by the defendants of plaintiffs’ due process rights * * *.”
Id. at 897. Jose P. v. Ambach, 669 F.2d 865 (2d Cir.1982), which recognized a § 1983 action in the context of an EHA claim, is likewise consistent, for there the school district conceded that it had failed to provide the statutory safeguards guaranteed by Congress.
As indicated above, this plaintiff has no claim under § 1415(e)(2). Thus, it is unnecessary for us to reach the question of whether damages are available under that section. Similarly, we have not considered any possible overlap between the Rehabilitation Act and the EHA, nor have we probed for possible constitutional violations mentioned in passing by the district court but not included in the § 1292(b) certification of controlling questions of law.
The order of the district court is affirmed, and the matter remanded for further proceedings consistent with this opinion.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Anna Marie Hill ALLEN, Plaintiff-Appellant, v. George S. LOVEJOY, Director of Memphis and Shelby County Health Department, Shelby County, Tennessee, et al., Defendants-Appellees.
No. 76-1081.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 9, 1977.
Decided April 21, 1977.
Robert M. Johnson, Canada, Russell & Turner, Memphis, Tenn., for plaintiff-appellant.
Abner W. Sibal, James P. Scanlan, E. E. O. C., Washington, D. C., for amicus curiae.
R. A. Ashley, Jr., Atty. Gen., Nashville, Tenn., C. Cleveland Drennon, Jr. (County Defts.), Memphis, Tenn., Edward R. Young (County Defts.), Dwight K. Luter, Memphis, Tenn., for defendants-appellees.
Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.
LIVELY, Circuit Judge.
This is an appeal from summary judgment in favor of Shelby County, Tennessee and several county employees in an action charging that plaintiff was suspended from her employment in the county health department in violation of her constitutional right to be free of discrimination on account of her sex. A declaratory judgment, preliminary and permanent injunctions and damages were sought pursuant to 42 U.S.C. §§ 1983, 1985 and 1988. Injunctive relief and back pay were also requested under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Interrogatories were filed and answered and depositions of the plaintiff and defendant Lovejoy were taken prior to a hearing on the motion of the defendants for summary judgment.
The plaintiff was unmarried when she was employed as a statistical clerk for family planning by the Health Department of Shelby County. Her employment records reflected her maiden name, Anna Marie Hill. After her marriage in December 1973 plaintiff was requested by a personnel clerk to sign prescribed forms authorizing the change of her name on personnel forms of her employer to Allen, the surname of her husband. Plaintiff refused this request and was then advised by two of her immediate supervisors that she was required to comply with the “name change policy” of the County. She then made an appointment with defendant Lovejoy, the director of the department, and was told that compliance was mandatory.
Plaintiff was suspended without pay on March 22, 1974 following her refusal to obey a written order from Dr. Lovejoy to effect the name change on the personnel records. She was reinstated to her previous position on August 16, 1974 following implementation by the Health Department of a new policy adopted by the Shelby County Board of Commissioners on June 20, 1974. Under the new policy the personnel records of county employees carry the name shown on each employee’s social security card.
Though the court found that the name change policy of the defendants did discriminate against women, it concluded that “[cjompelling a married woman to use her husband’s last name on personnel forms does not constitute the type of sex discrimination Title VII was meant to proscribe.” The court equated the name change policy with rules concerning hair length, separate restrooms and height and weight requirements, which have been upheld.
The plaintiff has appealed the dismissal of her claims under Title VII and § 1983. She has made no issue on appeal of the dismissal of her claims under §§ 1985 and 1988. In addition to the County itself and Lovejoy, the appellees are the three members of the Shelby County Board of Commissioners (the governing body of the County) and the director of personnel of the Health Department.
We conclude the district court erred in holding that the discrimination practiced by the defendants is not the kind which Title VII proscribes. 42 U.S.C. § 2000e-2(a)(l) provides—
§ 2000e-2. Unlawful employment practices — Employer practices
(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[.]
Speaking of Title VII, the Supreme Court wrote in Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), “What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” A rule which applies only to women, with no counterpart applicable to men, may not be the basis for depriving a female employee who is otherwise qualified of her right to continued employment.
Our cases dealing with grooming standards and height and weight requirements do not require a different result. In Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir., 1977), we dealt with a grooming code for both men and women employees which prescribed different restrictions on the hair styles of each sex and found no discrimination on the basis of sex “within the traditional meaning of that term.” Id. at 401. The Barker holding is in harmony with such decisions as that of the Fifth Circuit in Causey v. Ford Motor Company, 516 F.2d 416 (1975), which denied a claim of discrimination based on the maintenance of separate restrooms for men and women. As long as workers of each sex are provided adequate facilities there is no discrimination. The district court cited Smith v. Troyan, 520 F.2d 492 (6th Cir. 1975), cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976), which was not a Title VII case. There the court applied a “rational relationship” test to find that minimum height requirements for police officers were constitutionally permissible while minimum weight requirements were not. These requirements had been attacked by the plaintiff on equal protection grounds.
This court’s recent decision in Whitlow v. Hodges, 539 F.2d 582 (6th Cir.), cert. denied, 429 U.S. 1029, 97 S.Ct. 654, 50 L.Ed.2d 632 (1976), is inapposite. That case did not involve employment or the requirements of Title VII, but was concerned with a Kentucky regulation which requires a married woman to use her husband’s surname in applying for a. driver’s license. The outcome of Hodges was determined by the Supreme Court’s summary affirmance of a three-judge district court’s holding that an identical Alabama regulation did not offend the equal protection clause of the Fourteenth Amendment. See Forbush v. Wallace, 341 F.Supp. 217 (M.D.Ala.1971), aff’d, 405 U.S. 970, 92 S.Ct. 1197, 31 L.Ed.2d 246 (1972). In the present case we are dealing with a specific congressional enactment designed to eliminate discrimination in employment. When such discrimination is found to exist, it is not necessary to prove a constitutional violation. Those discriminated against are entitled to relief unless it is precluded by- some other provision of the Act.
We conclude that the district court erred in granting summary judgment to all of the defendants. Upon remand the district court will determine the amount of back pay to which the plaintiff is entitled, noting that she testified that she made no effort to find other employment during the period of her suspension. Entitlement to back pay is qualified by 42 U.S.C. § 2000e-5(g) which provides: “Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.”
Though the plaintiff named individual county officers and employees as well as Shelby County as defendants in this action, it is clear that Shelby County is the only proper defendant with respect to the Title VII claim. Shelby County was the plaintiffs employer and was the “respondent named in the charge” filed with the Equal Employment Opportunity Commission. See 42 U.S.C. § 2000e-5(f)(l). The “respondent” is defined as the employer charged with violation of the Act, § 2000e-5(b), and is described as the one against whom affirmative relief, including back pay, may be adjudged. § 2000e-5(g). The County is not immune from a money judgment for back pay by reason of the Eleventh Amendment. The Supreme Court recently held that Congress authorized federal courts to award money judgments against states in the 1972 amendments to Title VII. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). A fortiori, there is no immunity for political subdivisions of the states. See Incarcerated Men of Allen County Jail v. Fair, 507 F.2d 281 (6th Cir. 1974).
In view of our conclusions with respect to the Title VII claim, it is not necessary to consider the § 1983 claim. The demand for a declaratory judgment and injunctive relief was clearly rendered moot by the reinstatement of plaintiff pursuant to the new official policy of the County with respect to employees’ names on personnel records. There is no reason to believe the County will return to its “old ways.” United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). Thus the only relief possible under the § 1983 claim would be a money judgment for damages. There was no serious effort to establish bad faith or malice on the part of any of the defendants which would justify punitive damages; therefore any award under § 1983 would be limited to compensatory damages. Since the plaintiff will be “made whole” by the back pay award, any § 1983 damages would be cumulative.
The judgment of the district court is reversed insofar as it dismissed the complaint against Shelby County, Tennessee, and is affirmed in its dismissal of the complaint as to the remaining defendants. (The judgment omitted the name of the defendant Ramsay through oversight. An order should be entered dismissing as to this defendant). The case is remanded for further proceedings to determine the back pay award to which the plaintiff is entitled.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Appellee, v. Antonio Cruz VAZQUEZ, Benito Luis Cortina, Antonio Gonzalez, Andres Rene Rappard, and Jose De La Fe-Quintas, Appellants.
Nos. 678, 694, 695, 706 and 707, Dockets 78-1366, 78-1370, 78-1378, 78-1379 and 78-1398.
United States Court of Appeals, Second Circuit.
Argued Feb. 26, 1979.
Decided Aug. 24, 1979.
Gerald L. Shargel, New York City (Graham Hughes, Fischetti & Shargel, New York City, of counsel), for defendant-appellant Vazquez.
David Breitbart, New York City, for defendant-appellant Cortina.
Lawrence S. Bader, New York City (Se-gal & Hundley, New York City, of counsel), for defendant-appellant Gonzalez.
Michael Young, New York City (Goldberger, Feldman & Dubin, New York City, of counsel), for defendants-appellants Rappard and De La Fe-Quintas.
Susan E. Shepard, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Harvey M. Stone, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y., of counsel), for the United States of America.
Before FEINBERG, TIMBERS and MES-KILL, Circuit Judges.
MESKILL, Circuit Judge:
Antonio Cruz Vazquez, Benito Cortina, Antonio Gonzalez, Andres Rene Rappard, arid Jose De La Fe-Quintas appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge. Appellant Vazquez was convicted, after a jury trial, of conspiring to distribute heroin, in violation of 21 U.S.C. § 846; possessing with intent to distribute 44 pounds of heroin, 21 U.S.C. § 841(a)(1); and conducting a continuing criminal enterprise, 21 U.S.C. § 848. Cortina, Gonzalez, Rappard and De La Fe were convicted only on the conspiracy count — Cortina and Gonzalez after a jury trial, Rappard and De La Fe after guilty pleas. Each has been sentenced to a term of imprisonment and a special parole term; in addition, Vazquez and Gonzalez have been fined.
I. Background
The issues raised by the appeals before us do not necessitate a detailed elaboration of the complex and extensive narcotics operation in which appellants participated. Briefly, the government presented evidence showing that, with the help of an airline employee stationed in Arizona, participants in the conspiracy imported from Mexico large quantities of heroin and exported, in exchange, large sums of cash. The evidence indicated that the heroin was then transferred from the western states to New York or New Jersey, where it was ultimately sold.
Although the government called many witnesses and introduced many exhibits, a great deal of trial time was devoted to presenting to the jury, over the objections of the defendants, the contents of various intercepted telephone conversations in which one or more of the conspirators had participated. The federal statute governing wiretapping both restricts the availability of this singularly intrusive investigative technique and imposes a number of obligations on those federal or state authorities who are involved in its authorization, implementation or supervision. Failure to comply with certain of the procedures specified necessitates the suppression of the evidence obtained. Thus, in reviewing the district court’s decision not to exclude the challenged evidence, we must closely examine the route by which the intercepted conversations got into court in order to determine whether the statutory pre-conditions to its admission were satisfied.
On July 5, 1977, an investigator representing the Narcotics Strike Force of the Hudson County, New Jersey, Prosecutor’s Office applied to Judge Arthur J. Blake of the New Jersey Superior Court for an order authorizing the interception of certain wire communications pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act. The investigator’s supporting affidavit stated that the Prosecutor’s Office had obtained information from several sources (including interviews with confidential informants, visual surveillance of suspects, and examination of telephone company records) linking the use of four New Jersey telephones with the operation of a large narcotics conspiracy controlled by appellant Vazquez. According to the affidavit, the Prosecutor’s Office was of the view that electronic surveillance of four specified telephones would reveal information concerning the imminent shipment of a large quantity of heroin into the New York-New Jersey area. On the basis of this affidavit, the adequacy of which is discussed in part III of this opinion, Judge Blake issued an order dated July 5th, 1977, authorizing 20-day wiretaps on the four telephones, the last four digits of which are 0027, 9462, 5693, and 5699. On July 22, 1977, the New Jersey Superior Court authorized a 10-day extension of these four wiretaps, effective that day, oh the basis of an affidavit that both incorporated the original July 5th affidavit and included information gathered through interceptions under the initial order. On August 1, the New Jersey court authorized a second 10-day extension of the initial order on the basis of an affidavit that again incorporated the earlier affidavits and set forth information gathered during prior interceptions. On August 11, 1977, the Prosecutor’s Office sought and received a new order authorizing 20-day interceptions on the same four telephones. Again the supporting affidavit incorporated all previous affidavits and set forth new information gathered during previous interceptions.
On August 31, 1977, yet another 20-day order was issued. Because service had been terminated on one of the four tapped telephones, number 9462, no authorization was sought for continued interception of that line. However, the affidavit submitted to the New Jersey court by the Prosecutor’s Office stated that new information had been obtained indicating that telephone number 6299 was emerging as a focal point for communications between the subjects of the investigation, and authorization was sought and received for the initiation of a wiretap on this number. On September 19, a 10-day extension was sought as to three of the four phones covered by the August 31 order, and on September 29 a second extension was authorized covering these three lines.
No further orders or extensions were sought in connection with this investigation until January 3, 1978. A 20-day order issued on that date authorized the wiretapping of three previously untapped telephone lines, numbers 3016, 6656, and 7511. On January 23 a 10-day extension order was issued authorizing the continued interception of lines 3016 and 6656. After the expiration of this extension, all wiretap activity relevant to the instant appeals ceased. All intercepted conversations had been recorded on tape; the wiretaps conducted pursuant to the orders and extensions just enumerated generated over 200 reels of tape.
II. The Sealing of the Tapes
The argument most vigorously pressed by all five appellants, and the only one requiring extended discussion, focuses on what happened after the intercepted conversations were recorded. Appellants contend that the government should not have been permitted to rely on any of the tapes recorded during the interceptions described above because unacceptable delays preceded the judicial sealing of these tapes.
Both the federal wiretap statute and the corresponding New Jersey statute require the “immediate” judicial sealing of tapes recorded in the course of a wiretap, and under the terms of both statutes the admissibility of such tapes into evidence is conditioned upon the presence of a judicial seal or the offer of a satisfactory explanation for its absence. Federal and state courts have interpreted such sealing provisions to require, by implication, a satisfactory explanation even when a judicial seal is present, if such seal was not obtained “immediately.” See, e. g., United States v. Ricco, 566 F.2d 433,435 (2d Cir. 1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978); United States v. Gigante, 538 F.2d 502, 506 (2d Cir. 1976); State v. Cerbo, 78 N.J. 595, 600, 397 A.2d 671, 674 (1978). We have had occasion before to discuss the importance of the sealing provisions of the federal act.
Congress, in enacting Title Ill’s sharply detailed restrictions on electronic surveillance, intended to “ensure careful judicial scrutiny throughout” the process of intercepting and utilization of such evidence.
The immediate sealing and storage of recordings of intercepted conversations, under the supervision of a judge, is an integral part of this statutory scheme. Section 2518(8)(a) was intended, to “insure that accurate records will be kept of intercepted communications”. Clearly all of the carefully planned strictures on the conduct of electronic surveillance... would be unavailing if no reliable records existed of the conversations which were, in fact, overheard.
United States v. Gigante, supra, 538 F.2d at 505 (citations omitted). Gigante held that where tapes have not been properly sealed, suppression is appropriate even in the absence of any showing that the tapes have been altered. The Court reasoned that to condition suppression of improperly sealed tapes on a showing of tampering would controvert the language of the statute and would vitiate the congressional purpose. But see United States v. Cohen, 530 F.2d 43, 46 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976); United States v. Sklaroff, 506 F.2d 837, 840 (5th Cir.), cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975); United States v. Falcone, 505 F.2d 478, 484 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975).
The 208 tapes here at issue were judicially sealed in three groups. On September 13, one hundred fourteen reels were sealed; on October 17, an additional twenty-one reels were sealed; and on February 9, 1978, the final seventy-three tapes were sealed by order of Judge Blake. The chronology of events crucial to our calculation of the sealing delays involved in this case is set out in a chart in the margin.
The parties disagree not only as to whether the sealing delays incurred in this case were justified, they disagree as well as to how these delays are to be calculated. We note at the outset that the measurement of a particular sealing delay and the determination of whether that delay requires suppression of a wiretap tape otherwise admissible in a federal trial are matters of federal law. United States v. Sotomayor, 592 F.2d 1219, 1223-26 (2d Cir.), cert. denied, - U.S. ——, 99 S.Ct. 2842, 61 L.Ed.2d 286 (1979). Cf. United States v. Turner, 558 F.2d 46, 49 (2d Cir. 1977) (“This is a federal prosecution, and federal law determines whether suppression is appropriate.”). Thus, tapes sealed in compliance with the federal standards are admissible in federal court regardless of whether under applicable state law the tapes have been properly sealed. Under federal law, sealing delays are to be measured from the termination date of the continuous period of interception of a given telephone, regardless of the number or length of judicial orders that have been issued to authorize that surveillance. United States v. Scafidi, 564 F.2d 633, 641 (2d Cir. 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 401 (1978); United States v. Fury, 554 F.2d 522, 533 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977). Section 2518(5), which permits the issuance of 30-day orders and 30-day extensions, places no limit on the number of orders or extensions that may be issued to authorize continuation of a given interception, provided, of course, that all statutory conditions are met. Therefore, the duration of “the period of the order, or extensions thereof,” will depend in each case on the authorizing judge’s determination of the length of time interception is justified. And it is only the “expiration” of this “period of the order, or extensions thereof,” that triggers the sealing requirement of § 2518(8)(a).
Sotomayor turned on the distinction “between procedures governing the interception of wiretap evidence and those governing the preservation of such evidence after interception for trial.” 592 F.2d at 1225.
We believe that... in determining whether to admit a wiretap obtained by a state officer acting under a state court order issued pursuant to a state statute, [we are required] to apply only those more stringent state statutory requirements or standards that are designed to protect an individual’s right of privacy, as distinguished from procedural rules that are essentially evidentiary in character.
. Since a state’s protection of privacy normally reflects principles central to its social and governmental order, our failure to respect its more stringent protection of privacy rights would not only violate principles of federalism, but encourage state and federal law enforcement officials to by-pass state law and to engage in federal forum-shopping.... On the other hand, rules pertaining to the admissibility of evidence are ordinarily governed by the law of the forum.
Id. (footnotes omitted). This reasoning dictates the same result in the instant case. The New Jersey courts have had little occasion to interpret the state wiretap statute, and we are aware of no case precisely on point. Whether the sealing obligation of the New Jersey statute is eventually interpreted as attaching upon the expiration of each separate order or extension, as in New York, or as attaching only upon the termination of the entire period of interception of a particular telephone, as in the federal courts, we must be guided by federal law in this area. In contrast to the federal act, the New Jersey statute permits issuance only of 20-day orders and 10-day extensions. Furthermore, under the New Jersey statute only two 10-day extensions of a particular 20-day order may be issued. To obtain authorization for the continuation of a wiretap beyond the period covered by an order and the two permitted extensions thereof, law enforcement officials must apply for a new order. By setting the standards for issuance of a 20-day order higher than those governing issuance of a 10-day-extension, and by permitting the issuance of only two extensions of each order, the New Jersey legislature has established a method somewhat different from that chosen by Congress for protecting against unwarranted interceptions. Under United States v. Sotomayor, supra, 592 F.2d at 1223-26, this choice, insofar as it affects the validity of an order issued by a New Jersey judge, will be respected by the federal courts. However, New Jersey’s policy choice regarding the authorization of continuous wiretaps cannot logically be viewed as affecting the approach to be taken by the federal courts in assessing the adequacy of the sealing of the tapes obtained in the course of those taps.
We interpret the phrase “period of the order, or extensions thereof,” in the sealing provision of the federal statute, § 2518(8Xa), to encompass a continuous authorized wiretap in its entirety, regardless of whether the judicial orders authorizing the initiation or continuation of the tap are denominated “orders,” “extensions,” “renewals,” or “continuations.” To interpret federal law otherwise would result in permitting the timeliness of the sealing of tapes offered in evidence in federal court to be determined by a state decision to label orders authorizing the continuation of wiretaps by any term other than the term “extension.” Such a result, although in no way increasing the protection afforded individual privacy, would diminish federal control over evidentiary procedures in the federal courts. Keeping in mind the principles enunciated in United States v. Sotomayor, supra, we deem it most unlikely that Congress intended such a result. Therefore, we conclude that the term “extensions,” as used in the phrase “period of the order, or extensions thereof” is to be understood in a common sense fashion as encompassing all consecutive continuations of a wiretap order, however designated, where the surveillance involves the same telephone, the same premises, the same crimes, and substantially the same persons. See United States v. Scafidi, supra, 564 F.2d at 641; cf. United States v. Principie, 531 F.2d 1132, 1142 n.14 (2d Cir. 1976), cert. denied, 430 U.S. 905, 97 S.Ct. 1173, 51 L.Ed.2d 581 (1977). It follows that the sealing obligation under federal law is not accelerated by New Jersey’s method of authorizing the continuation of a wiretap beyond the period of the initial order.
Having determined that the sealing obligation attached, under federal law, on the date each tap terminated, we can now calculate how long the sealing of the eight sets of tapes generated by the eight wiretaps was delayed. The delays relevant to this appeal range from 7 to 13 days:
Date of Wiretap Termination Dates of Days of Sealing Delay
0027 Sept. 19,1977 9/13/77 [0]
9462 Aug. 81,1977 9/13/77 13
5693 Oct. 9,1977 9/13 & 10/17/77 8
5699 Oct. 9,1977 9/13 & 10/17/77 8
6299 Oct. 9,1977 10/17/77 8
6656 Feb. 2,1978 2/ 9/78 7
* 7511 Jan. 23,1978 2/ 9/78 [17]
3016 Feb. 2, 1978 2/ 9/78 7
The law is clear that if no explanation had been offered for these delays we would be obliged to reverse, as a sealing achieved one to two weeks after expiration of a wiretap cannot be considered “immediate.” Cf. United States v. Gigante, supra, 538 F.2d 502 (8 to 12 month delays). The cases illustrate that sealing is often possible within one or two days. See, e. g., United States v. Sotomayor, supra, 592 F.2d at 1221. Thus, in our view, any delay beyond that certainly calls for explanation. Unfortunately, there is no clear consensus as to what constitutes a “satisfactory explanation,” under the statute, for a less-than-immediate sealing.
No evidence was offered to controvert the affidavit submitted by the govern-merit at the suppression hearing or the testimony of task force agents at trial regarding the carrying out of the wiretapping. The task force experienced shortages in both qualified personnel and equipment. Surveillance on each wire was conducted 24 hours a day and as many as five lines were monitored at any givén time. Because the great majority of the conversations intercepted were conducted in Spanish, it was necessary, in order to observe the minimization requirements of the New Jersey statute, to have at least one agent fluent in Spanish monitoring the tapes on each 8-12 hour shift. Although the Prosecutor’s Office borrowed Spanish-speaking agents from other law enforcement agencies, only four qualified agents were available. An attempt was made to record both original tapes and duplicate tapes simultaneously but because too few tape recorders were available, even after borrowing, this was possible less than half the time. Due to round-the-clock use, the tape recorders required frequent repair work. Further, because personnel and equipment were engaged in the monitoring and recording process, machines and personnel were not always available to duplicate those tapes for which no duplicates had been made during the interception itself. And because the Spanish speaking personnel were engaged in monitoring conversations, they were not always available to spot-check the duplicate tapes for audibility. In addition, during the effective period of each order or extension, strike force personnel needed to gain sufficient familiarity with the tapes to enable them to decide which taps should be continued and which should be terminated. Each application for continued authorization of a tap contained information obtained during the effective period of the prior order or extension so that the issuing judge would have sufficient information on which to base a determination that continued surveillance was justified. This on-going evaluation of the conversations intercepted made further demands on the personnel and equipment available. Finally, the fact that over 200 reels of tape required duplicating, labeling, and checking made difficult the-prompt preparation of the tapes for sealing.
Although the question is close, in our view the circumstances just detailed provide a satisfactory explanation for the 7 to 13 day sealing delays. When the wiretaps were first instituted, the government had reason to believe that the investigation would be quickly concluded, as their information indicated that a drug shipment was due to arrive in the area. Had the evidence needed been gathered during the first week or two of surveillance, perhaps the personnel and equipment on which the project depended would have been able to handle the necessary monitoring, duplication and transcription without incurring delays in sealing. In the circumstances of this case, where we discern on the government’s part no bad faith, no lack of diligence, and no attempt to gain an advantage over the defendants, we believe that the government’s lack of foresight regarding the actual scope of the investigation does not justify the exclusion of probative evidence lawfully obtained.
Congress has explicitly established “two possible prerequisites to the use of wiretap evidence — the presence of a judicial seal, or a satisfactory explanation of its absence..” United States v. Gigante, supra, 538 F.2d at 506 (emphasis added). Unless we are to read the second alternative out of the statute, we must decide in each case whether the explanation tendered can be deemed “satisfactory.” In the instant case, although the delays were not miniscule, neither were they of Gigante proportions. In this Circuit delays of comparable length have been deemed excusable in some circumstances and inexcusable in others. Compare United States v. Scafidi, supra, 564 F.2d 633 (7-day delay excused); United States v. Fury, supra, 554 F.2d at 533 (6-day delay excused); United States v. Poeta, 455 F.2d 117 (2d Cir.), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972) (13-day delay excused); United States v. Aloi, 449 F.Supp. 698 (E.D.N.Y.1977) (5-day and 7-day delays excused); United States v. Caruso, 415 F.Supp. 847 (S.D.N.Y.1976), aff’d, 553 F.2d 94 (2d Cir. 1977) (24-day and 42-day delays excused) with United States v. Ricco, 421 F.Supp. 401 (S.D.N.Y.1976), aff’d, 566 F.2d 433 (2d Cir. 1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978) (pre-Sotomayor, applying New York law, 12-day or 13-day delay not excused). See also United States v. Angelini, 565 F.2d 469 (7th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1487, 55 L.Ed.2d 517 (1978) (9-day, 26-day and 38-day delays excused); United States v. Sklaroff, supra, 506 F.2d 837. Taken together, the factors discussed above appear to us to explain adequately the delays incurred.
However, in law as in life, today’s satisfactory explanation may very well be tomorrow’s lame excuse. As the federal and state case law in this area grows, the failure to foresee and, where possible, prevent sealing delays becomes less justifiable, as law enforcement officials must be expected to learn from their own experiences and those of others. As other courts have done: “We decline to allow the police to rely on their own failure to use proper equipment or to institute more efficient procedures as an excuse for delay.” People v. Washington, 46 N.Y.2d 116, 124, 412 N.Y.S.2d 854, 859, 385 N.E.2d 593, 597 (1978). The wiretapping statute imposes a duty on the judiciary as well as on the prosecutor. It is our role to exclude from evidence tapes not sealed in conformance with the law, and we are aware that by faithfully performing this statutory duty we encourage law enforcement officers to perform their duties in an equally rigorous manner. For this reason, we will continue to scrutinize wiretap cases with care, and will not hesitate to exclude evidence when exclusion is appropriate.
III. Probable Cause
Not only do appellants contend that the wiretap tapes were improperly sealed, they argue, in addition, that this evidence was improperly obtained. Appellants claim that the affidavits supporting the wiretap authorization orders failed to establish probable cause for the interceptions and that Judge Mishler erred in denying defense motions to suppress the tapes on this ground.
The New Jersey statute permits a state judge to enter an ex parte interception order if the court determines on the basis of the facts submitted by the applicant that there is probable cause to believe inter alia that:
(a) The person whose communication is to be intercepted is engaging or was engaged over a period of time as a part of a continuing criminal activity or is committing, has or had committed or is about to commit an offense as provided in... this act;
(b) Particular communications concerning such offense may be obtained through such interception;
(d) The facilities from which, or the place where, the wire or oral communications are to be intercepted, are or have been used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by, such individual....
NJ.Stat.Ann. 2A.156A-10. We are not the first court that has been called upon to evaluate the challenged affidavits under the statutory standards. A neutral and detached magistrate, Judge Blake of the New Jersey Superior Court, concluded that these affidavits established probable cause for his issuance of the several orders requested, and such a determination is to be accorded substantial deference. Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Gomez Londono, 553 F.2d 805, 810 (2d Cir. 1971); State v. Murphy, 137 N.J.Super. 404, 420, 349 A.2d 122, 131 (Super.Ct.Law Div.1975), rev’d on other grounds, 148 N.J.Super. 542, 372 A.2d 1315 (Super.Ct.App.Div.1977). Judge Mishler has also carefully reviewed the challenged affidavits and has found them to be more than adequate. Our own study of the affidavits leads us to the same conclusion.
No purpose would be served by setting out in detail the contents of these lengthy affidavits. Suffice it to say that each one provided ample factual material on which to base a determination of probable cause. The information presented in the initial 37-page affidavit was gathered from several sources, including tips from three confidential informants. Considerable evidence was provided to support the affiant’s conclusion that the informants were reliable. Two had previously supplied the Prosecutor’s Office with information concerning drug-related activity and this information had been corroborated by the investigators and found to be correct. See Aguilar v. Texas, supra; Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Rueda, 549 F.2d 865, 870 (2d Cir. 1977); United States v. Edmonds, 535 F.2d 714 (2d Cir. 1976); United States v. Fantuzzi, 463 F.2d 683, 687-88 (2d Cir. 1972). Cf. United States v. Fiorella, 468 F.2d 688, 691-92 (2d Cir. 1972), cert. denied, 417 U.S. 917, 94 S.Ct. 2622, 41 L.Ed.2d 222 (1974). The information given by the third informant was confirmed by a DEA agent. Significantly, the statements provided by the confidential informants to some extent corroborated one another. Furthermore, the Prosecutor’s Office had, where possible, verified details of the informants’ stories in order to ensure that the tips were based “on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969); United States v. Edmonds, supra, 535 F.2d at 720. Cf. United States v. Dunloy, 584 F.2d 6 (2d Cir. 1978). Although some of the information had been gathered in the early stages of the investigation, there was ample indication that the criminal activity was of an ongoing nature and that the information was therefore still pertinent. State v. Murphy, supra, 137 N.J.Super. at 421; 349 A.2d at 131-32. Moreover, appellants’ contention that the affidavit was defective due to certain omissions is without merit. We agree with Judge Mishler that assuming that the omitted facts are true and that their omission was intentional, they would not be material to a determination of probable cause. Therefore no hearing on this issue was necessary. Cf. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); United States v. Steinberg, 525 F.2d 1126, 1131 (2d Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976). Viewed as a whole, the initial affidavit was sufficient to establish probable cause to believe that by tapping the target phones investigators could intercept communications between the members of the alleged drug conspiracy and that those conversations would relate to that conspiracy. The subsequent affidavits, all of which incorporated new information gleaned during the most recent interceptions, also clearly met the standard set by statute.
Defendants correctly observe that wiretapping is “not to be routinely employed as the initial step in criminal investigation,” United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1827, 40 L.Ed.2d 341 (1974). The New Jersey statute provides that a wiretap application shall include, in addition to the requirements just discussed:
A particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ....
N.J.Stat.Ann. 2A:156A-9(c)(6). However, “the purpose of the statutory requirements is not to preclude resort to electronic surveillance until after all other possible means of investigation have been exhausted by investigative agents; rather, they only require that the agents inform the authorizing judicial officer of the nature and progress of the investigation and of the difficulties inherent in the use of normal law enforcement methods.” United States v. Hinton, 543 F.2d 1002, 1011 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976). See also United States v. Fury, supra, 554 F.2d at 529-30; United States v. Steinberg, supra, 525 F.2d at 1130. The challenged affidavits were clearly sufficient in this regard. As Judge Mishler stated:
The affidavit details the standard investigative techniques that were utilized prior to the wiretap application and indicates the paucity of admissible evidence resulting therefrom.
Prior to resorting to wiretapping, the Prosecutor’s Office had interviewed informants, both confidential and identified; had undertaken physical surveillance; and had checked bank, telephone, motor vehicle, public utilities and police records; and yet, had been unable to gather sufficient evidence to arrest the conspirators.
The district court correctly concluded that the challenged wiretap orders were properly issued.
The judgments of conviction are affirmed.
. With the agreement of the government and the approval of the court, Rappard and De La Fe preserved the right to appeal the district court’s denial of their motions to suppress certain wiretap evidence. See United States v. Price, 599 F.2d 494, 496 n.1 (2d Cir. 1979), and cases cited therein.
. Vazquez was sentenced on the criminal enterprise count to a term of 15 years’ imprisonment, lifetime special parole, and a $25,000 fine, and on the possession count to a term of 15 years’ imprisonment (concurrent) and a $100,000 fine. Cortina was sentenced to a term of 15 years’ imprisonment and a special parole term of 15 years. Gonzalez was sentenced to a term of 10 years’ imprisonment, a special parole term of 15 years, and a $25,000 fine. Rappard was sentenced to a term of 5 years’ imprisonment and a special parole term of 10 years. De La Fe was sentenced to a term of 3 years’ imprisonment and a special parole term of 7 years.
. No challenge has been made to the sufficiency of the evidence presented to support the verdicts rendered as to the three appellants who proceeded to trial: Vazquez, Gonzalez and Cortina.
. The intercepted conversations were conducted almost entirely in Spanish. Although none of the jurors spoke Spanish, tapes of a few key conversations were played in court. On these occasions, the jurors were given transcripts of English translations of the conversations. These transcripts did not identify the speakers. The jurors were permitted to read along, and to make notes if they wished to do so, while an agent on the witness stand read aloud government-prepared English translations, identifying the various speakers as he read. On other occasions, the playing of the Spanish tapes was omitted but the rest of the procedure remained the same.
No challenge to the accuracy of either the transcriptions or the translations has been made. Appellant Cortina, however, does challenge the district court’s decision to allow the government to proceed in this manner. Judge Mishler cautioned the jury to evaluate the testimony bearing on the accuracy of the transcription, the translation from the Spanish, and the identification of the speakers, and he made clear that the transcripts were to be used only as aids: “The mere fact that it is in typewritten form does not mean you must accept it.... [The transcripts] are merely guides, subject to assessment by you as to the accuracy and the weight to be given... Tr. at 890. Under these circumstances, we cannot agree with Cortina’s contention that the procedures followed deprived him of a fair trial. Cf. United States v. Lam Lek Chong, 544 F.2d 58, 71 (2d Cir. 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1124, 51 L.Ed.2d 550 (1977); United States v. Chiarizio, 525 F.2d 289, 294 (2d Cir. 1975); United States v. Marin, 513 F.2d 974, 977 (2d Cir. 1975); United States v. Koska, 443 F
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_usc1sect
|
8761
|
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 49. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
LOUISVILLE AND NASHVILLE RAILROAD CO., Plaintiff-Appellee, v. MEAD JOHNSON & CO., Defendant-Appellant, and SOUTHERN RAILWAY COMPANY, Plaintiff-Appellee, v. MEAD JOHNSON & CO., Defendant-Appellant.
No. 83-1638.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 6, 1984.
Decided June 20, 1984.
Certiorari Denied Nov. 5, 1984.
See 105 S.Ct. 386.
Paul J. Wallace, Bowers, Harrison, Kent & Miller, Evansville, Ind., for plaintiff-ap-pellee.
Thomas H. Bryan, Fine, Hatfield, Spar-renberger & Fine, Evansville, Ind., for defendant-appellant.
Before CUMMINGS, Chief Judge, and PELL and CUDAHY, Circuit Judges.
Pursuant to Circuit Rule 16(e), this opinion has been circulated among all judges of this court in regular active service. No member of the court favored a rehearing en banc regarding the availability of the misrouting defense for inconsistent rate and route information in the circumstances of this case and the disagreement with Johnson Machine Works, Inc. v. Chicago, Burlington & Quincy Railroad Co., 297 F.2d 793, 798-99 (8th Cir.1962).
CUDAHY, Circuit Judge.
Interstate common carriers are required by law to charge their shippers the lawful published tariff for a shipment, 49 U.S.C. § 10761(a), and this rule applies even where the carrier misquotes the applicable tariff to the shipper. This appeal presents issues concerning the vitality of this rule and the scope of the “misrouting” exception to it.
The dispute before us concerns freight charges for approximately 400 rail shipments of “milk food liquid” by defendant Mead Johnson & Co. from its plant in Evansville, Indiana, to its warehouse in South Plainfield, New Jersey. The shipments in dispute were made between 1978 and 1980 through the plaintiffs, Louisville & Nashville Railroad Company (“L & N”) and the Southern Railway Company (“Southern”).
Prior to 1977, Mead Johnson shipped milk food product from Evansville to New Jersey via Chicago and Buffalo. We shall refer to that route as the “northern route.” Along the northern route, L & N took the goods to Chicago, and other lines carried them to Buffalo and on to Mead Johnson’s plant in New Jersey. During late 1976 and early 1977, several shipments along this northern route were delayed, and the milk products were damaged by freezing. Representatives of L & N and Mead Johnson met to discuss the problems, and they agreed that Mead Johnson would begin to ship to New Jersey via Cincinnati, Ohio, and Hagerstown, Maryland. We shall refer to that route as the “southern route.” At approximately the same time, Mead Johnson began to make some of its shipments to New Jersey on Southern, and those shipments also went along this southern route. All of the shipments in dispute here were made along the southern route.
The problem stems from the fact that the freight tariffs for the southern route differed from those for the northern route. The northern route had an approved commodity “rate tariff” under which the several carriers along the route had agreed in advance how to divide the revenues from the shipments they shared. The southern route did not have an approved “rate tariff,” so charges for shipments along the southern route should have been the sum of the “route tariffs” for the various segments or legs of the southern route. The applicable route tariff for the southern route was, therefore, higher than the rate tariff for the northern route. Both railroads in this case charged Mead Johnson the lower rate applicable to shipments along the northern route (with its approved rate tariff), when by law the applicable tariff was the higher route tariff for the southern route. The railroads later sued for the difference between the rates, total-ling approximately $113,000 for the 400 shipments. After a consolidated trial before a magistrate, the railroads won judgments for the full amounts of the undercharges.
I.
Ancient and exotic laws govern interstate freight charges. A common carrier regulated by the Interstate Commerce Commission may not receive for its services any compensation other than that specified in the applicable tariff, “whether by returning a part of that rate to a person, giving a person a privilege, allowing the use of a facility that affects the value of that transportation or service, or another device.” 49 U.S.C. § 10761(a). This rule is applied strictly:
Under the interstate commerce act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it, unless it is found by the Commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict, and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discrimination.
Louisville & Nashville Railroad Co. v. Maxwell, 237 U.S. 94, 97, 35 S.Ct. 494, 495, 59 L.Ed. 853 (1915). The shipper and the carrier may not agree on any other rate, and if the carrier by mistake charges the shipper at a rate lower than the applicable tariff, the carrier not only may but must sue to recover the difference. Consolidated Freightways Corp. v. Forty-Eight Insulations, Inc., 501 F.2d 1400, 1402 (7th Cir.1974). That rule applies even if the carrier misquotes the applicable rate to the shipper. “The carrier’s right to recover is quite unaffected by the usual limitations on contract actions based on mistake.” Western Transportation Co. v. Wilson & Co., Inc., 682 F.2d 1227, 1229 (7th Cir.1982). See also Aero Trucking, Inc. v. Regal Tube Co., 594 F.2d 619, 622 (7th Cir.1979) (shipper’s alleged reliance on misquoted rates not a defense)! The reason for this unusual rule, with its sometimes inescapably inequitable results, was Congress’ desire to eliminate the secret discounts and preferential treatment for big shippers that were common in the late 19th century. Id., 594 F.2d at 621.
Ordinarily the carrier would be able to recover the rate differences merely by showing, as the railroads here have done, that the applicable filed tariff was higher than the amount actually charged. However, the courts and the ICC have recognized a narrow exception' to the sometimes harsh rule that the filed tariff must apply regardless of mistake. . Recovery may be denied if the carrier has “misrouted” the shipment. For example, if a shipper asks a carrier to take a shipment from Endsville to Mudville and does not specify the route between the two, the carrier ordinarily may charge only the lowest available rate between the two towns, even if the shipment actually went over a route carrying a higher tariff. Under those circumstances, the carrier generally has a duty to ship by the cheapest reasonable means available. Northern Pacific Railway Co. v. Solum, 247 U.S. 477, 483, 38 S.Ct. 550, 553, 62 L.Ed. 1221 (1918); Johnson Machine Works, Inc. v. Chicago, Burlington & Quincy Railroad Co., 297 F.2d 793, 795 (8th Cir.1962). See also Hewitt-Robins Inc. v. Eastern Freight-Ways, Inc., 371 U.S. 84, 87, 83 S.Ct. 157, 159, 9 L.Ed.2d 142 (1962) (recognizing shipper’s cause of action for misrouting).
Mead Johnson has sought to show that the railroads “misrouted” the shipments here by sending them along the more expensive southern route. However, Mead Johnson faces one very formidable obstacle in making that argument. Mead Johnson itself prepared the bills of lading for the shipments here, and those bills of lading all contained route information which specified the southern route. Because Mead Johnson specified the route on the bills of lading, the railroads appear to have simply followed the shipper’s instructions by using the southern route, and that cannot be misrouting.
Mead Johnson’s rebuttal is two-pronged. It contends first that it included routing information in the bills of lading at the railroads’ request and as a courtesy to them. Second, it contends that it always made clear to the railroads that it wanted its products carried by the cheapest route.
Mead Johnson’s rate clerk, Marilyn Scales, testified that railroad employees had repeatedly asked that Mead Johnson include the route information on the bills of lading. If this were true, Mead Johnson could have shown that the railroads were responsible for choosing the more expensive route and thus might have misrouted the goods. See Texas Eastern Transmission Corp. v. Louisville & Nashville Railroad Co., 292 I.C.C. 15, 16 (1954) (shipper rebutted presumption that it designated route on bill of lading); Sieck & Snediger v. Atchison, Topeka & Santa Fe Railway Co., 283 I.C.C. 337, 340 (1951) (same); Brownyard v. Union Pacific Railroad, Co., 148 I.C.C. 444, 448 (1928) (same). However, there is virtually no documentary support for Scales’ contention, for according to Mead Johnson, the relevant documents would have been destroyed under Mead Johnson’s document retention policy well before the case was brought. The magistrate who heard the case below did not credit Scales’ testimony on this point, and he found that Mead Johnson itself had supplied the routing information. In the complete absence of any undisputed documentary support for Scales’ testimony, we cannot say that this factual finding was clearly erroneous. Because Mead Johnson did not establish as a fact that the railroads supplied the route information, we need not decide whether misrouting can be found where the carrier supplies the route information but the shipper is aware of the route. See infra note 4.
In Mead Johnson’s second line of attack, it insists it repeatedly told the railroads that it did not care which route the goods took, so long as they went by the cheapest route available. According to Mead Johnson, the fact that the bill of lading specifies the route is not conclusive but creates only a presumption that the shipper designated the route, and that presumption may be overcome by “the clear indication on the part of the shipper expressed to the carrier that his principal concern is the rate, not the route.” Johnson Machine Works, supra, 297 F.2d at 798. See Brownyard v. Union Pacific Railroad Co., supra, 148 I.C.C. at 448 (“clear evidence to the contrary” may rebut presumption).
Scales’ testimony also supported this claim of “rate preference.” She testified that in discussions with L & N leading to the use of the southern route, she and other Mead Johnson employees repeatedly told L & N that the southern route would be acceptable only if the same commodity rate could be preserved. According to her, Mead Johnson was not overly concerned about the delays and damage by freezing occurring on the northern route because Mead Johnson was receiving full compensation on its claims resulting from those problems. She also testified that in discussions with Southern Railway, Mead Johnson had insisted that it would ship with Southern only if the railroad could assure the same low rate that L & N was charging. According to Scales, representatives of both railroads assured her that the cheaper rate was available on the southern route. Again, her testimony on these points was not supported by any documentary evidence, with the exception of one brief handwritten note about a telephone conversation. According to Mead Johnson, the documents which would support her testimony on this point would also have been destroyed several years ago. The railroads both said that searches of their files did not turn up any of this alleged correspondence.
The magistrate who heard the case in the district court found that the presumption of shipper routing had not been rebutted by clear evidence to the contrary. He wrote that he was “unable to find a preponderance of the credible evidence supporting the proposition that the shipper’s only concern was shipping by the lowest rate or that such concern was duly impressed or communicated to the carriers.” Those findings are grounded on the documentary evidence in the record, and the evaluation of the rate clerk’s unsupported testimony is a task for the magistrate in the first instance. We cannot say that his findings were clearly erroneous. Therefore, we need not decide whether a shipper’s clear expression of rate preference can establish misrouting where the shipper is aware of the route. See infra note 4.
II.
Mead Johnson argues finally that even if it supplied the routing information, the railroads still misrouted the shipments because they received from Mead Johnson ambiguous or inconsistent route information which they had a duty to clarify. It is clear that Mead Johnson was doing most of the railroads’ paperwork on these shipments, including preparing the bills of lading and calculating the applicable tariffs. Scales, the rate clerk who testified for Mead Johnson, maintained “rate charts” which specified the applicable tariffs for Mead Johnson’s shipments of various products from Evansville to points around the country. The rate charts would have saved a great deal of time in calculating the applicable tariffs on repeated shipments.
These rate charts were not only for Mead Johnson’s convenience. According to Scales, she delivered these rate charts to both railroads and regularly updated the charts. In fact, when new rates were about to go into effect, the clerks at both railroads called her to find out if she had figured out the new tariffs for them. The railroads relied on Mead Johnson’s rate charts to such an extent that the magistrate found that all of the freight bills in this case were based on these rate charts. The railroads would prepare the freight bills merely by comparing the bills of lading, which Mead Johnson prepared, with the rate charts, which Mead Johnson also prepared.
Mead Johnson argues that where a shipper provides both route and rate information, and where that information is ambiguous or contradictory, the carrier has a duty to inquire and clarify whether the shipper prefers the rate or the route specified on the shipping papers. Mead Johnson relies on Johnson Machine Works, Inc. v. Chicago, Burlington & Quincy Railroad Co., 297 F.2d 793, 798 (8th Cir.1962), which held that where a shipper designated a route and clearly indicated that it claimed a transit rate not applicable to that route, the carrier had a duty to resolve the ambiguity by asking the shipper to choose between the designated route and the claimed rate. There the court reasoned that the shipper’s designation of a rate not applicable to the specified route implied the designation of a second and alternative route. The court relied on several ICC decisions holding that the carrier has a duty to clarify ambiguous or inconsistent instructions. Where the carrier breached that duty, it could charge only the tariff for the cheaper of the two routes thus designated. 297 F.2d at 798-99.
The railroads argue that Johnson Machine Works should not apply here because in that case the inconsistent rate and route information were both contained on the same document—the bill of lading. However, it is clear that the court in Johnson Machine Works did not rely on that fact, and we do not think that circumstance is controlling—or perhaps even relevant— here. The significant fact in Johnson Machine Works was that the shipper had designated a route and at the same time clearly indicated “on the shipping papers” that it was claiming a transit rate which was available between the origin and destination but not applicable to the designated route. 297 F.2d at 798. In the present case the shipping papers themselves did not indicate the rate which Mead Johnson claimed was applicable, but the rate charts provided by Mead Johnson and used by the railroads in preparing the bills indicated as clearly as possible which rates Mead Johnson claimed. This situation thus appears to be parallel to that in Johnson Machine Works, for it should have been clear to the railroads that Mead Johnson was providing inconsistent rate and route information.
The railroads argue additionally that application of the Johnson Machine Works exception for contradictory information could provide a device for circumventing the clear terms of 49 U.S.C. § 10761(a). We are not persuaded that the exception for inconsistent information would undermine the purposes of the act, at least as the exception would be applied in the circumstances of this case. Mead Johnson claimed on its rate charts a rate that clearly was available between the origin and destination. Indeed, if Mead Johnson had not supplied the route on the bills of lading, it is quite possible that it could have been charged only the lower rate, regardless of which route the goods actually followed. Since in any event the lower rate could have been available, the case before us presents no immediate threat of unlawful rate preferences.
Nonetheless, although the Johnson Machine Works exception for inconsistent rate and route information does not appear to undermine the purpose of the statute, it does appear to conflict with the applicable Supreme Court decisions which apply the terms of the Act strictly and apparently beyond the requirements of its underlying purpose. The Court has held that shippers are conclusively presumed to know the filed tariffs applicable to their shipments. Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Fink, 250 U.S. 577, 581, 40 S.Ct. 27, 27, 63 L.Ed. 1151 (1919); Louisville & Nashville Railroad Co. v. Maxwell, 237 U.S. 94, 97-98, 35 S.Ct. 494, 495-496, 59 L.Ed. 853 (1915); Kansas City Southern Railway Co. v. Carl, 227 U.S. 639, 653, 33 S.Ct. 391, 395, 57 L.Ed. 683 (1913). See also Aero Trucking, Inc. v. Regal Tube Co., supra, 594 F.2d at 621-22. The Court has also said that no equitable defenses can prevent enforcement of the lawful rates, and that no act or omission by the carrier, except for the running of the statute of limitations, can prevent enforcement of the lawful tariffs. Louisville & Nashville Railroad Co. v. Central Iron & Coal Co., 265 U.S. 59, 65, 44 S.Ct. 441, 442, 68 L.Ed. 900 (1924). See Baldwin v. Scott County Milling Co., 307 U.S. 478, 485, 59 S.Ct. 943, 948, 83 L.Ed. 1409 (1939) (equitable considerations not a defense); Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Fink, 250 U.S. 577, 582-83, 40 S.Ct. 27, 28, 63 L.Ed. 1151 (1919). These decisions remain good law. Congress has not amended the Interstate Commerce Act to change the rigid enforcement of tariffs, and the Supreme Court has consistently adhered to these precedents and to the Act’s original dominant purpose of precluding under any guise preferential treatment in interstate freight rates. See Southern Pacific Transportation Co. v. Commercial Metals Corp., 456 U.S. 336, 343-44, 102 S.Ct. 1815, 1820-21, 72 L.Ed.2d 114 (1982).
The exception for inconsistent rate and route information therefore appears to conflict with the conclusive presumption that the shipper knows the lawful tariff. Where the shipper provides a route to the carrier and at the same time claims a rate which is not lawfully applicable to that route, the presumption of the shipper’s knowledge would seem logically .to preclude a claim of misrouting.
We can see no credible way to distinguish the situation of inconsistent rate and route information from one in which both parties agree on a rate other than the lawful rate, regardless of whether the parties are aware of their mistake. It is clear that Mead Johnson and both railroads thought that the lower commodity rate tariff applied to the southern route, and it is clear that all parties were wrong on that score. This circumstance appears to be nothing more than a mutual mistake or misquotation, and the shipper remains liable for the lawful tariff. Louisville & Nashville Railroad Co. v. Maxwell, 237 U.S. 94, 98, 35 S.Ct. 494, 495, 59 L.Ed. 853 (1915). Mead Johnson’s argument regarding inconsistent information has a powerful appeal to equity, but this contention would also seem to apply to any case in which the carrier had juxtaposed the route and incorrect rate information received from the shipper. A broadly defined “inconsistency” exception would quickly swallow the rule that mistake is not a defense in interstate rate cases, for a shipper could protect itself by merely telling the carrier which rate it was claiming. The Supreme Court said in Maxwell, supra:
A misstatement or misquotation of the rate over a given route is one thing; misrouting is a different matter. We do not think that it can be said that there is a “misrouting,” in any proper sense, when the route given by the company is that requested by the shipper or passenger.
237 U.S. at 99, 35 S.Ct. at 496. We think the exception for inconsistent or ambiguous information must therefore be limited to situations in which the carrier cannot understand the shipper’s routing instructions, or where the routing instructions, without reference to rate information, cannot be executed as written. Under this view therefore there was no misrouting here.
We recognize the apparent unfairness of this strange result. This construction of the Interstate Commerce Act encourages shippers to be lazy. Mead Johnson is being penalized here for being a knowledgeable shipper who went the extra mile by helping the railroads do their own jobs. However, Congress, in fear of the perhaps now dated bogeyman of rate discrimination, has established a regime of strict adherence to interstate freight tariffs. And the Supreme Court decisions show that the Act is to be enforced rigorously according to its terms. To ensure the achievement of the Act’s purposes, the terms in which the Act is framed reach well beyond those purposes. Although the courts have frequently recognized the harshness and absurdity that may result from the strict construction of the Act, Congress has not amended it. The wisdom of the Act’s policy of insisting first and foremost upon uniformity of interstate freight rates is not before us, and we are obliged to enforce the Act as written by Congress and interpreted by the Supreme Court.
For the foregoing reasons, the judgments of the district court in favor of plaintiffs Louisville & Nashville Railroad Company and Southern Railway Company are
Affirmed.
. The district court described the correct tariff here as "apparently as hard to find as the Holy Grail.” This court, after examining the tariffs included in the appellate record, entirely agrees.
. The Interstate Commerce Act was revised and recodified in 1978 by Pub.L. 95-473, 92 Stat. 1337, codified in 49 U.S.C. §§ 10101 et seq. Section 10761(a) does not differ from prior statutes in any way relevant to this case.
. See, e.g., Vernon Lumber Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 281 I.C.C. 789, 791 (1951); Inland Steel Co. v. Union Pacific R. Co., 264 I.C.C. 267, 269 (1946); Cudahy Packing Co. v. Baltimore & Ohio R. Co., 173 I.C.C. 121, 124 (1931).
. Our reasoning here, based on the presumption that the shipper knows the applicable tariff, would appear to extend to situations in which the shipper is aware of the actual route prior to shipping. If it does extend that far, it would call into question the validity of the misrouting exception where the carrier provides the routing information. Cf. Brownyard v. Union Pacific R. Co., 148 I.C.C. 444, 448 (1928). Because Mead Johnson failed to establish as a factual matter that the railroads supplied the routing information, see supra Part I, we need not decide whether the misrouting exception is available where the carrier supplies routing information and the shipper is aware of the route.
. Recent legislation moving toward modified deregulation of the railroad industry (involving greater reliance on competitive forces) might suggest the need for a second look at policies requiring strict adherence to filed tariffs. See, e.g., Staggers Rail Act of 1980, Pub.L. 96-448, 94 Stat. 1895; Railroad Revitalization and Regulatory Reform Act of 1976, Pub.L. 94-210, 90 Stat. 31. Greater rate flexibility, for example, might seem appropriate where competitive forces are at work and monopoly or monopsony power has abated. However, Congress has not yet amended the Act to permit greater flexibility in situations like the one before us, and we are unwilling to engage in deregulation by adjudication.
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 49? Answer with a number.
Answer:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
FREY v. FREY.
No. 5539.
Court of Appeals of the District of Columbia.
Argued June 2, 1932.
Decided June 27, 1932.
Mark P. Friedlander, of Washington, D. C., for appellant.
Tracy L. Jeffords, of Washington, D. C., for appellee.
Edwin D. Detwiler and Jean M. Board-man, both of Washington, D. C., amici curias.'
Before MARTIN, Chief Justice, and HITZ and GRONER, Associate Justices.
GRONER, Associate Justice.
This is an appeal from a decree of the Supreme Court of the district declaring the marriage of appellant and appellee to have been void. A statement of the facts found by the trial court, somewhat condensed, is as follows:
Appellant, Margaret Frey, then domiciled in Virginia, married Richard R. Allen in Arlington county in that state in 1929. They removed to the District of Columbia, and have continuously resided here ever since. In 1921 appellant left Allen, and thereafter maintained adulterous relations with appel-lee, Ethelbert Frey. In 1924 Allen brought suit in the District of Columbia for divorce-from appellant, and named Frey as co-respondent. Frey later induced Allen to dismiss this suit in order that Allen’s wife (appellant)' might obtain a divorce in 'Virginia, for desertion. In 1925 the Virginia court granted a divorce, on that ground.
The trial court found that the Virginia divorce was fraudulent and- void and that ap-1 pelleo Frey “devised the plan by which such fraud was practiced, and * * * aided, assisted, and advised plaintiff * * " hi the practice of such fraud. The fraud consisted in the fact that the suit was collusive; in the fact that plaintiff — as she and defendant Frey well knew — was not then domiciled in Virginia, and had not been domiciled therein for more than a year prior to the beginning of that suit; and in the further fact that plaintiff was not an actual resident of Arlington County, Virginia, and had not had her residence therein for several years immediately prior to the institution of the suit; and in the fact that both plaintiff and defendant * * * intended that perjured testimony should and would be given to obtain the decree in the Virginia court; and in the further fact that the husband Allen had a complete defense to the suit brought by bis wife in Virginia; and that it was agreed between him and defendant Frey that said defense would be concealed from the Virginia court.”
A year and a half later appellant and ap-pellee were married. Alien contracted a second marriage in the middle of 1926, and has continued since then to live with the woman he married and by whom ho has had two children.
The present suit was begun by Margaret Frey for limited divorce and maintenance. Ethelberi Frey answered and by cross-bill asked for annulment of the marriage. The decree of the lower court ascertained that the marriage between Margaret Frey and Ethelbert Frey in 1927 was void, and declared the same annulled, vacated, and set aside, on the authority of Simmons v. Simmons, 57 App. D. C. 216, 19 F. (2d) 690, 54 A. L. R. 75. In that case we held that in a proceeding to annul a void marriage the rule of pari delicto and the equitable principle of “clean hands” are inapplicable because in such cases the state becomes a third parly. Admittedly the only difference between that ease and this is that there the rights of innocent third parties were not involved. In this case the court below found that Allen, appellant’s first husband, had a valid cause of divorce against Ms wife in the District of Columbia, and was induced by appellee, who is a lawyer, to dismiss that suit on the understanding that a valid decree of divorce could be obtained in a. Virginia suit brought on behalf of Ills wife. Ilis second marriage was in gnod faith, and two children, who are still infants, have been bom as a result of tiiis marriage. The property rights of the innocent second wife and children of Allen, as well as the marital status of the wife and legitimacy of the children, are said to bo involved. In such circumstances we should not, if there were an alternative, be disposed to extend the doctrine announced in Simmons v. Simmons, supra.
Undoubtedly it is true that a divorce granted in any state according to its laws by a conrt having jurisdiction of the cause and of both the x>ujrties is valid and effectual everywhere, hut a divorce obtained by a person legally domiciled in one state who leaves that state and goes into another solely for the purpose of obtaining a divorce and with no purpose of residing there permanently, is invalid, and the state of bona fide residence may forbid the enforcement within its borders of a decree of divorce so procured. Andrews v. Andrews, 188 U. S. 14, 23 S. Ct. 237, 47 L. Ed. 366. And this is true even though the decree of divorce recites facts sufficient to give the court jurisdiction. Sewall v. Sewall, 122 Mass. 156, 23 Am. Rep. 299. The underlying reason for this is perhaps nowhere better expressed than by Mr. Justice Field in Maynard v. Hill, 125 U. S. 190, 211, 8 S. Ct. 723, 729, 31 L. Ed. 654, where he said: “Other contracts may bo modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parlies to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would he neither civilization nor progress.”
In tMs case the lower court found, as a matter of fact, that appellant and appellee conspired and contrived by means of falsehood and subterfuge to impose on the jurisdiction of the Virginia court, except for which no decree of divorce would have passed. We are bound by this finding. Appellant never left the District of Columbia, and the finding of the Virginia court that she then resided in Virginia was induced by her perjury, in which appellee connived. The Virginia court, therefore, never acquired any jurisdiction of either party, and equally, therefore, was wholly without power to grant the decree. The only question, therefore, we have to determine is whether, in view of the effect of a decree of annulment of the subsequent marriage of appellant and appellee on the lives and fortunes of the wife and children of Allen, who admittedly are blameless, we ought, at the instance of either appellant or appellee, who are riot, to examine a judicial decree declaring that marriage void and of no effect, or whether we ought .to apply the old and familiar maxim of the common law ex turpi causa non oritur actio, as to which Mr. Justice Peekham in McMullen v. Hoffman, 174 U. S. 639, 654, 19 S. Ct. 839, 845, 43 L. Ed. 1117, remarked: “It is stated that Lord Kenyon once said, by way of illustration, that he would, not sit to take an account between two robbers on Hounslow Heath.”
If it were open to us to choose the course we should take in such circumstances, we should decline to have the processes of the court used to judicially annul the subsequent marriage of appellant and appellee, but should consider it our duty to deny to the one the monetary relief which she seeks, and to the other release from responsibilities which he has grown to regret, and, instead, to apply in their case that wise and salutary principle that the law estops a party to allege in a court of justice his own wrong. But the difficulty confronting us grows out of the fact that here the marriage between appellant'and appellee is a void marriage, and this is so because the court below has found, and we must find, that the Virginia court was wholly without jurisdiction to grant a. divorce between appellant and Allen, Hence the decree in that court is not a voidable decree but a void decree, and since it is a void decree, it is a nullity, and therefore the marriage subsequently contracted is equally so. In Heflinger v. Heflinger, 136 Va. 289, 301, 118 S. E. 316, 320, 32 A. L. R. 1088, Judge Burks said of a somewhat similar situation: “If the marriage in controversy was void from its inception * * * the decree of annulment adds nothing * * but simply operates as an estoppel against setting up the validity of the marriage in any future controversy. It leaves the property rights of the parties just as they wore before. Iff the marriage was in fact void, neither party acquired any rights in the property of the other. Their property rights stand as if there had been no marriage. The decree of annulment only ascertains that there had been no valid marriage between the parties, and obviates the necessity of ever thereafter being compelled to show its invalidity. If the complainant were acquiring any rights by virtue of his suit, other than the determination of his status in society, a different rule might apply; but he is acquiring none.”
This, it seems to us, correctly portrays the situation as we find it in the instant ease. Section 1283, D. C, Code 1924 (title 14, § 1, D. C. Code 1929), provides that the marriage of any persons whose previous marriage has not been terminated by a decree of divorce shall be absolutely void ab initio. In that ease no decree of court is required to declare the invalidity of the marriage, and the only effect of one is to insure to the guilty party certainty in respeet of his status. If this were all, we should not be at pains to find a means of accomplishing that result. But what is true of the marriage of appellant and appellee is also true of the marriage of Allen, and, in this view, it is not only in the interest of society but equally in the interest of the innocent wife and children of Allen that the true status of the parties should be judicially found and declared, because to temporize or postpone will only be to delay the evil day and possibly still further to add to the unhappy complications into which they have unwittingly been led. As the Virginia, decree of divorce was without effect, Allen’s subsequent marriage was void, his wife acquired no property rights, and his children no rights except to have their legitimacy declared under section 972, D. C. Code 1924 (title 14, § 67, D. C. Code 1929). It is in their interests rather than against their interests that this sordid indecency should be brought to a close, and such avenues as are now open to them availed of before it is too late.
Affirmed.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_source
|
L
|
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.
Kenneth GRIFFIN, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.
No. 84-3196.
United States Court of Appeals, Eleventh Circuit.
May 19, 1989.
Rehearing and Rehearing In Banc Denied July 29, 1989.
Patterson, Bleknap, Webb, & Tyler, Fred Davis, Robert LoBue, Donald Baer, Douglas B. Maynard, New York City, John D. Middleton, Atty., Gainesville, Fla., for petitioner-appellant.
Gary L. Printy, Tallahassee, Fla., for respondent-appellee.
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before TJOFLAT, KRAVITCH and HATCHETT, Circuit Judges.
PER CURIAM:
By applying the Supreme Court’s holdings in Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986) and McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), we affirm the district court’s denial of the petitioner’s petition for writ of habeas corpus.
The facts and procedural history in this capital case are found in Griffin v. Wainwright, 760 F.2d 1505 (11th Cir.1985), cert. granted and judgment vacated, 476 U.S. 1112, 106 S.Ct. 1964, 90 L.Ed.2d 650, cert. denied, 476 U.S. 1123, 106 S.Ct. 1992, 90 L.Ed.2d 672 (1986). We remanded Griffin’s unconstitutional application of the death penalty claim to the district court for consideration in light of our opinions in McCleskey v. Kemp, 753 F.2d 877 (11th Cir.1985) (in banc), cert. granted in part, 478 U.S. 1019, 106 S.Ct. 3331, 92 L.Ed.2d 737 (1986), aff'd, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), and Ross v. Kemp, 756 F.2d 1483 (11th Cir.1985) (in banc), on remand, 785 F.2d 1467 (11th Cir.1986). The Supreme Court granted Griffin’s subsequent petition for a writ of certiorari and remanded for further consideration in light of Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). Griffin v. Wainwright, 476 U.S. 1112, 106 S.Ct. 1964, 90 L.Ed.2d 650 (1986).
Following the Supreme Court’s remand, we directed the parties to provide supplemental briefing on the following issues: (1) what action should this court take in light of the Supreme Court’s remand for further consideration in light of Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986); (2) of what relevance is Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987); and (3) what action should this court take in light of McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).
The parties agree and we find that the harmless error rule of Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) has no application to this case. Accordingly, this issue will not be discussed further.
I. The Cabana Issue
Griffin contends that Cabana requires Florida’s state judicial system to determine whether his culpability is commensurate with the imposition of the death penalty. He argues that the state courts have not made a sufficient determination of his culpability. Griffin claims that the state trial court instructed the jury on the elements of both premeditated murder and first degree murder, but that the jury returned only a general verdict of guilty. Thus, Griffin asserts that the jury may have convicted him without finding that he killed the victims or intended their deaths because the instruction on felony murder stated that he could be found guilty even though no premeditated design or intent to kill existed. Additionally, Griffin argues that none of the various state court opinions in this case make the necessary Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) finding.
The state contends that the state trial judge’s sentencing order found Griffin to be the actual killer of the victims. Thus, the findings satisfy Enmund. The state emphasizes the district court’s finding, based on the state trial proceedings, that Griffin acted alone in killing the victims.
Cabana v. Bullock requires that the federal habeas corpus court examine the entire course of the state-court proceedings to determine whether, at some point in the state’s process, the requisite finding as to the petitioner’s culpability has been made. Cabana, 474 U.S. at 387-88, 106 S.Ct. at 697. If such a finding has been made, it is entitled to a presumption of correctness in federal courts, pursuant to 28 U.S.C.A. § 2254(d). Cabana at 388, 106 S.Ct. at 698.
Cabana clarified Enmund. In Enmund, the Supreme Court forbade the imposition of the death penalty on “one ... who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, or intend that a killing take place or that lethal force will be employed.” Enmund, 458 U.S. at 797, 102 S.Ct. at 3376. Cabana explains that Enmund protects defendants who, although guilty of capital murder as defined by state law, may not lawfully be sentenced to death because they did not kill, attempt to kill, or intend to kill. Cabana, 474 U.S. at 385, 106 S.Ct. at 696.
The Cabana Court delineated “the appropriate course of action for a federal court faced with an Enmund claim when the state courts have failed to make any finding regarding the Enmund criteria.” Cabana, 474 U.S. at 390, 106 S.Ct. at 699. Although recognizing that federal and state courts are equally competent to make the factual determination of whether a defendant in fact killed, attempted to kill, or intended to kill, the Cabana Court concluded that the desirable alternative is to allow the state's judicial system to make this determination in the first instance. Cabana at 390, 106 S.Ct. at 699. The Court reasoned:
First, to the extent that Enmund recognizes that a defendant has a right not to face the death penalty absent a particular factual predicate, it also implies that the State’s judicial process leading to the imposition of the death penalty must at some point provide for a finding of that factual predicate.... Second, the State itself has ‘a weighty interest in having valid federal constitutional criteria applied in the administration of its criminal law by its own courts.’ [Citations omitted.]
Cabana 474 U.S. at 390-91, 106 S.Ct. at 699.
We hold that the Florida judicial system has satisfied Cabana in this case. The record shows that the appropriate En-mund findings were made in Florida's judicial system. The state trial court made a finding that Griffin played a major role in the capital felony, and was, in fact, the actual killer of one of the victims. Because these findings by the state trial court satisfy Enmund, Griffin has no valid Cabana claim.
II. The McCleskey Issue
Griffin contends that we should remand his case to the district court for an evidentiary hearing on whether his death sentence was unconstitutionally based on the race of his victims. Griffin argues that the consideration of racial factors in his case violated the due process and equal protection clauses of the fourteenth amendment and the eighth amendment because his death sentence was imposed in an arbitrary, capricious, and irrational manner. Griffin asserts that his claims are based on the individual circumstances of his case and not solely on statistical submissions like those addressed in McCleskey.
Griffin claims that the prosecutor improperly addressed the race of the victims in his case, and in other death penalty cases, and that statistical studies demonstrate a correlation between the imposition of the death sentence and the victim’s race. Taken together, Griffin argues that these two forms of evidence demonstrate that the death sentence in his case is unconstitutional.
A. The Prosecutor’s Statements
Griffin argues that the prosecutor improperly made repeated references to the race of his victims and that these remarks served no justifiable purpose because the race of the victims was never an issue at trial. Griffin claims that if given the opportunity to produce evidence at a hearing, he will establish a pattern of behavior by the prosecutor relating to himself and others where the prosecutor intentionally referred to the race of the victims.
Citing Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), Griffin contends that any unnecessary risk of racial prejudice in a death penalty proceeding is unconstitutional. Turner, however, is distinguishable from this case. In Turner, the Supreme Court vacated Turner’s death sentence because the trial judge failed to question prospective jurors on racial prejudice, and thereby failed to adequately protect Turner’s constitutional right to an impartial jury. In this case, Griffin merely asserts that the race of his victims may have influenced the jury to impose a death sentence. Griffin makes no claim that the state trial judge failed to protect his right to trial by an impartial jury.
Griffin also cites Robinson v. State, 520 So.2d 1 (Fla.1988) to argue that the heightened risk created whenever issues of race are injected into a capital proceeding require new sentencing proceedings. In Robinson, the prosecutor cross-examined Robinson’s medical expert and inquired into the race of Robinson’s victims from previous crimes during the penalty stage of the trial. The Florida Supreme Court found:
The prosecutor’s comments and questions about the race of the victims of prior crimes committed by appellant easily could have aroused bias and prejudice on the part of the jury. That such an appeal was improper cannot be questioned. The questioning and resultant testimony had no bearing on any aggravating or mitigating factors. [Footnote omitted.]
Robinson, 520 So.2d at 7. The Florida Supreme Court found that the risk that issues of race may have influenced the jury’s decision was unacceptable, reversed the death sentence, and remanded the case to the trial court for a new sentencing hearing.
Because we cannot say beyond a reasonable doubt that the jury’s recommendation was not motivated in part by racial considerations, we cannot deem the error harmless.
Robinson, at 8.
Robinson, however, is also distinguishable. The Florida Supreme Court vacated Robinson’s death sentence because the prosecutor impermissibly argued a nonstat-utory aggravating factor and injected evidence calculated to arouse racial bias during the penalty phase of the trial. The court found that the prosecutor deliberately attempted to insinuate that Robinson had a habit of preying on white women, which constituted an impermissible appeal to racial bias and prejudice. A review of Griffin’s trial and sentencing transcripts do not reveal insinuations approaching the magnitude of those presented in Robinson. We hold that the prosecutor’s comments concerning the race of Griffin’s victims were not impermissible appeals to racial bias and prejudice.
B. Statistical Evidence
Griffin argues that statistical evidence exists which demonstrates that a defendant convicted in Florida of murdering a white person is nearly five times more likely to receive the death penalty than one convicted of murdering a black victim. Griffin contends that these studies show a significant and undeniable correlation between the race of the victim and the imposition of the death penalty in Florida. Griffin emphasizes that the studies establish the existence of a risk that race entered into the decision to impose his death sentence.
Griffin contends he is entitled to an evi-dentiary hearing to fully develop the facts surrounding the prosecutor’s improper reference to his victims’ race. He contends that although he did not raise this claim until his petition for post-conviction relief, he was improperly denied an opportunity to develop the necessary facts because the state courts improperly ruled that the claim was procedurally barred. See Griffin v. Wainwright, 760 F.2d at 1518.
We reject Griffin’s claim to an evidentia-ry hearing. To prevail under the equal protection clause, Griffin must prove that the decisionmakers in his case acted with discriminatory purpose. McCleskey, 481 U.S. at 292, 107 S.Ct. at 1766. In McCleskey, the Supreme Court found that the nature of the capital sentencing decision, and the relationships of the statistics to that decision, are unique. Each decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of enumerable factors that vary according to the characteristics of the individual defendants and the facts of the particular capital offenses. McCleskey at 294, 107 S.Ct. at 1767. The Supreme Court held that the Baldus Study relied on by McCleskey was insufficient to support an inference that any of the deci-sionmakers in McCleskey’s individual case acted with discriminatory purpose. McCleskey, at 297, 107 S.Ct. at 1769. Griffin’s argument that the prosecutor acted with discriminatory intent in commenting on the race of the victims, and his offer to provide statistical evidence that a defendant convicted in Florida of murdering a white victim is nearly five times more likely to receive the death penalty than one convicted of murdering a black victim, would be insufficient to prove an equal protection violation under McCleskey.
Likewise, Griffin’s argument that the prosecutor’s reference to racial factors violated his eighth amendment rights are unavailing. Griffin contends that the heightened risk created whenever issues of race are injected into a capital proceeding create a situation for a new sentencing hearing. The Supreme Court in McCleskey recognized that,
because of the risk that the factor of race may enter the criminal process, we have engaged in ‘unceasing efforts’ to eradicate racial prejudice from our criminal justice systems. Our efforts have been guided by our recognition that ‘the inestimable privilege of trial by jury ... is a vital principle, underlying the whole administration of criminal justice.’ Thus it is the jury that is a criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice.' Specifically, a capital sentencing jury representative of a criminal defendant’s community assures a ‘diffused impartiality,’ in the jury’s task of expressing the conscience of the community on the ultimate question of life and death. [Citations omitted.]
McCleskey at 309-10, 107 S.Ct. at 1775-76. The Supreme Court declined to accept the conclusion presented by the Baldus Study that an unacceptable risk of racial prejudice may exist which influences capital sentencing decisions. McCleskey v. Kemp at 309, 107 S.Ct. at 1775. We agree. Accordingly, we reject Griffin’s claim.
CONCLUSION
Griffin has failed to establish that his death sentence was imposed in violation of Cabana and Enmund, or that he should receive an evidentiary hearing concerning his McCleskey claims. Accordingly, we affirm the denial of Griffin’s petition for writ of habeas corpus.
AFFIRMED.
. See Griffin v. State, 414 So.2d 1025 (Fla.1982); Griffin v. State, 447 So.2d 875 (Fla.1984).
. See Griffin v. Wainwright, 588 F.Supp. 1549, 1561 (M.D. Fla.1984).
. The trial court found that:
These murders took place in the early morning hours of September 10, 1975, when [Griffin] and two accomplices went to a convenience store on U.S. Highway 301, south of Starke, committed a robbery of the store, killed the manager of the store, Glen Cavell Lundgren, while in the store, departed taking one occupant (the only eyewitness other than [Griffin]) in the store, Keith Kirchaine, killed him a few miles away from the store and left his body beside the road, where it was discovered the next day. One accomplice was granted immunity and testified at the trial.
Transcript of Sentencing Hearing at 10.
The trial court found that:
[A] disinterested witness testified that [Griffin] actually told him about the robbery and [Griffin] stated he shot the boy in the store and that they took the other boy from the store off into the woods and killed him, but [Griffin] did not tell him how many times ‘he shot the boy.’
Transcript of Sentencing Hearing at 11.
The trial court found that:
The evidence, including [Griffin’s] statement to an uninvolved third party, points directly to [Griffin’s] active participation in the robbery and actual shooting of the victim [Count I].
Transcript of Sentencing Hearing, at 12-13.
The trial court found that:
The victim as to Count II was the only eyewitness, an innocent bystander, to the robbery and killing of the victim in Count I. He was taken by [Griffin] from the scene of the robbery and first murder, and on a lonely road some three and a half miles away was shot by [Griffin] for the sole and only purpose of avoiding or preventing later identification and arrest.
Transcript of Sentencing Hearing at 14-15.
The trial court found that:
The capital felony was especially heinous, atrocious or cruel. The victim of the murder in Count II was a young lad who begged not to be killed. He was shot at least three times by [Griffin], one at close range and others while further away. The evidence shows that he was not killed by the first shot, but struggled beside the roadway over a length of several yards; that he was shot again and again; and that he later died from bleeding to death from his multiple wounds, after being left on the side of a lonely road to die. Such killing was atrocious, outrageously and extremely wicked and vile, and shockingly evil. •
Transcript of Sentencing Hearing at 15.
The trial court found that:
The evidence, including [Griffin’s] statement to an uninvolved third party, points directly to [Griffin’s] active participation in the robbery and actual shooting of the victim.
Transcript of Sentencing Hearing at 16.
. See S. Gross and R. Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 78 (1984); Baldus, Woodworth and Palasky, Arbitrariness and Discrimination in the Administration of the Death Penalty: A Challenge to State Supreme Courts, 15 Stetson L.Rev. 133, 158 (1986); H. Zeisel, Race Bias in the Administration of the Death Penalty: The Florida Experience, 95 Harv. L. Rev. 456 (1981); M. Radelet, “Racial Characteristics in the Imposition of the Death Penalty,” American Sociological Review (1981); and Bowers and Pierce, "Arbitrariness in Discrimination Under Post-P«r-man Capital Statutes," Crime and Delinquency (1980).
. Griffin failed to argue his fourteenth amendment due process claim. Accordingly, we need not address this issue.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_casetyp1_2-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights".
DAY v. ATLANTIC GREYHOUND CORPORATION.
No. 5803.
United States Court of Appeals Fourth Circuit.
Dec. 7, 1948.
Martin A. Martin, of Richmond, Va. (■Hill, Martin & Robinson, of Richmond, Va., on the brief), for appellant.
Robert Lewis Young, of Richmond, Va. (Oscar L. Shewmake, John C. Goddin, and John G. May, Jr.,, all of Richmond, Va., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
This action for personal damages grew out of the enforcement of a regulation of the carrier which required the segregation of white and colored passengers in its motor busses. The plaintiff, a Negro woman 67 years of age, refused to conform to the regulation or to leave the bus in which she was a passenger, and, as a consequence, ■was forcibly ejected from the vehicle by police officers summoned by the driver, and then arrested by the police officers and confined on the charge of disorderly conduct. The reasonableness of the regulation was submitted by the District Judge to the jury which returned a verdict for the defendant.
The most important legal question on this appeal is raised by the contention of the plaintiff that any rule of a common carrier which imposes racial segregation upon its passengers not only contravenes the principles of the common law, but violates the Fourteenth Amendment of the Federal Constitution. This question, however, is not open to debate in this court. It is foreclosed by binding decisions of the Supreme Court which hold that an interstate carrier has a right to establish rules and regulations which require white and colored passengers to occupy separate accomfhodations provided there is no dis-' crimination in the arrangement. See Hall v. DeCuir, 95 U.S. 485, 24 L.Ed. 547; Chiles v. Chesapeake & Ohio R. Co., 218 U.S. 71, 30 S.Ct. 667, 54 L.Ed. 936, 20 Ann.Cas. 980. It is true that in more recent' decisions, notably Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317, 165 A.L.R. 574, and Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 68 S.Ct. 358, the right of colored passengers in public vehicles to fair and reasonable treatment has been sustained, and the limits to the power of the states to enact segregation statutes have been defined. In Morgan v. Virginia, for example, it was held that a Virginia statute which requires motor carriers to allocate seats to white and colored passengers so as to separate the races, and requires passengers, if necessary, to change their seats repeatedly in order to comply with the allocation, imposes an undue burden on interstate commerce and therefore violates Article 1, § 8, Cl. 3 of the Federal' Constitution. Nevertheless, in this very case the court pointed out that it was dealing with a state statute and not with a regulation of the carrier; and the court referred specifically to its earlier decision in Chiles v. Chesapeake & Ohio R. Co., supra, in the following language, 328 U.S. 373, 377, Note 12, 66 S.Ct. 1050, 1053, 90 L.Ed. 1317, 165 A.L.R. 574: “When passing upon a rule of a carrier that required segregation of an interstate passenger, this Court said, ‘And we must keep in mind that we are not dealing with the law of a state attempting a regulation of interstate commerce beyond its power to make.’ Chiles v. Chesapeake & Ohio R. Co., 218 U.S. 71, 75, 30 S.Ct. 667, 668, 54 L.Ed. 936, 20 Ann.Cas. 980.” Since the Chiles case expressly sustained the power of an interstate carrier to issue a segregation regulation, provided that • it is not discriminatory, our inquiry must be limited to the nature of the regulation enforced in the pending case, and we may not inquire whether the segregation of the races in public vehicles is in itself inherently discriminatory.
When the present controversy arose, the bus company had on file with the Interstate Commerce Commission, pursuant to the requirements of Sections 216(a) and 217(a) of the Interstate Commerce Act of 1935 as amended, and pursuant to the regulations of the Commission promulgated thereunder, 49 U.S.C.A. 316(a), 317(a), a reservation which makes the following provision:
“Reservations:
******
“(2) The carriers reserve to themselves full control and discretion as to seating of passengers and reserve the right to change such seating at any time during the trip.”
On August 15, 1946, shortly after the decision in the Morgan case, the carrier issued an instruction to its drivers plainly intended to obviate the shifting of seats criticized in that decision. Reservation (2) was set out, and the drivers were directed with respect to the seating of white and colored passengers in the following language:
“Where such has been the accepted usage, custom and tradition, it is suggested that, as far as practicable and pursuant to the authority of the rule above quoted, colored passengers be seated from the rear forward, and white passengers from the front toward the rear. This rule is based upon established usage induced by general sentiment of the community, and is designed not only to promote the comfort, safety and security of all the passengers, but to preserve peace and good order and avoid undue discrimination. This will also serve the purpose of accomplishing uniformity, and will avoid requiring passengers from repeatedly shifting seats to meet the seating requirements of a changing passenger group.
“It is essential in any assignment of seats that there be no undue discrimination of any kind shown against any passenger, whether colored or white, and that all be given seats which are substantially equal, in comfort and convenience to other available seats in the coach. This is a requirement of the law and of good common sense, and must be strictly followed.
* * # * * *
“Should a passenger refuse to comply with your seating assignment, you must not use force. If, after every persuasive method has failed and the passenger still refuses to comply and has been courteously advised of our rules and regulations, and that you will have to obtain the assistance of a law enforcement officer, you may then call for and appeal to a police or law enforcement officer and have such passenger removed from the bus. Under the law a peace officer does hot need a warrant to arrest a person who has committed a misdemeanor in his presence. Therefore, in the event you find it necessary to seek the assistance of a peace officer, you should repeat your request in. the presence and hearing of this officer, and then leave the matter of enforcement to him. Passengers should not be removed from the bus except at points where we maintain depots, where they will be safe and protected.”
On December 22, 1946, at Syracuse, New York, the plaintiff purchased a round trip bus ticket from Syracuse to Florida, with stopover privileges at Richmond, Virginia. She rode in the busses of connecting carriers from Syracuse to Richmond, where she stayed three weeks, and on January 22, 1946, boarded a bus of the defendant company at Richmond for transportation to Winter Haven, Florida. She was the first person aboard the bus, and took the second seat from the front on the side opposite the driver, and occupied this seat beside a white woman without objection during the afternoon until the bus arrived at South Hill, Virginia. All the passengers, except the plaintiff, and the driver then left the bus during a stop for supper. When the driver returned he found the plaintiff alone in the bus and directed her to change her seat. According to her testimony, she was ordered to take a place on the last seat; indeed such an order was in accord with the company’s instructions which required the driver to seat colored passengers from the rear of the bus forward. The plaintiff, however, refused to move although the driver explained that he was merely carrying out the company’s orders. She was under the impression that the Supreme Court in the Morgan case had declared the segregation of the races in public vehicles a violation of the constitutional rights of colored persons. Moreover, she had been permitted to ride unmolested in the same seat with a white passenger during the two and a half hours ride from Richmond to South Hill. On the latter point the driver testified that the bus was crowded with passengers standing in the aisles when he left Richmond, and he did not notice that the plaintiff was seated in the same part of the bus as the white passengers.
When the plaintiff refused to move, the driver called police officers who were compelled to use force to eject the plaintiff since she resisted and clung to her seat. After they had taken her from the vehicle, they attempted to take her to a police car but she again resisted and the officers then walked her some distance to the jail where she was charged with disorderly conduct and locked up. At the end of three hours she was allowed to deposit $20 in lieu of bail and released. She left Virginia shortly thereafter on another bus and did not return for her trial. During her struggles with the police officers, she lost a number of items of personal property, but there is no claim that the police officers used more force than was necessary to accomplish their purpose.
It is not disputed that all the seats in the bus with the exception of the rearmost seat are equally convenient and comfortable. In respect to that seat the evidence was conflicting, some of the witnesses claiming that it is not so comfortable, others, that it furnishes to passengers substantially the same accommodations as the other seats afford. This question was submitted to the jury by the judge in his instruction as to the right of the carrier to promulgate reasonable regulations and its duty not to discriminate between passengers on account of their race. He said:
“ * * * If you believe that those rules and regulations adopted by the Defendant, Atlantic Greyhound Corporation, are reasonable and fair in their application; that under the rules substantially equal facilities and accommodations are extended members of both the white and colored race, then the rule's and regulations are reasonable and enforceable. Of course, minor or trifling differences may appear, the accommodations do not have to be absolutely identical, but if they are substantially equal then the regulation and rules are valid and proper. If upon the other hand, in your opinion the facilities offered the plaintiff and members of her race * * * were unequal, * * * or were not substantially equal to those furnished white passengers, then the rules and regulations result in discrimination against members of the colored race, and should be declared invalid and unenforceable.
“Now, if you believe from the evidence that the rules and regulations result in discrimination against the plaintiff by reason of her race or color, your verdict should be for the plaintiff. If upon the other hand you believe that the rules and regulations shown in evidence are not discriminatory and that the plaintiff was afforded substantially equal facilities with those furnished other passengers, * * * if you believe that to be the case the bus driver under the circumstances here related had the right and he was required to enforce or carry out the rules and regulations and to designate the seat to be occupied by the various passengers, which included the plaintiff. * * * if you believe that they were non-discriminatory, the driver has the right to change passengers within reason, and under reasonable conditions designate their seats and to apply those rules in a reasonable common sense way and if a passenger refuses to conform with the requirements of the bus driver then it was the right of the bus driver and his responsibility to eject that passenger from the bus. He had the right to call to his assistance, if necessary, a police officer, one or more, for the purpose of ejecting the passenger, the plaintiff in this case, but he was not permitted to use more force than was reasonable and proper under all the circumstances, in ejecting the passenger. Before ejecting the passenger he should acquaint such passenger with the existence or terms of the rules and regulations and request conformity therewith, if, after having done so, the passenger refuses to comply as I said, then he has the right to have the passenger removed. He has no right to use any greater force than is reasonable and proper under all the circumstancés existing.”
In our .opinion, this charge fairly presented the case to the determination of the jury. We do not doubt that a regulation or course of conduct on the part of a carriel* which involves the repeated shifting of seats by colored passengers would in itself amount to discriminatory treatment in deprivation of their just rights; but that is not the case before us. When the plaintiff was requested to move, the bus was empty except for herself, and the shift could have been made without substantial inconvenience either to the other passengers or to herself. The adoption of a reasonable regulation by an interstate carrier for the segregation of passengers does not violate the law as laid down by the Supreme Court; and in this case both the reasonableness of the regulation and the manner in which it was enforced were fairly submitted to the jury and determined against the plaintiff.
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:
|
songer_circuit
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Plaintiff-Appellee, v. Albert Lonzo CANTRELL, Defendant-Appellant.
No. 78-1750.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 13, 1979.
Decided Jan. 7, 1980.
Bruce C. Houdek of James, Odegard, Mil-lert & Houdek, Kansas City, Mo., for defendant-appellant.
John Oliver Martin, Asst. U. S. Atty. (with James P. Buchele, U. S. Atty., Topeka, Kan., on brief), Kansas City, Kan., for plaintiff-appellee.
Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.
McKAY, Circuit Judge.
This case involves two loads of firearms sold to a government “sting” operation. Cantrell and a cohort were indicted under 18 U.S.C. § 922(i) for transporting each of the loads from Missouri to Kansas on September 19 and 20, 1977. Cantrell, a previously convicted felon, was also indicted under 18 U.S.C. § 922(h) for “receiving” the same firearms in Kansas on the same dates. He was convicted and sentenced to consecutive terms of imprisonment for the four counts. The government’s apparent theory and actual proof was that the defendants stole the weapons in Missouri and transported them to Kansas for sale to the sting operation. Cantrell challenged the obvious inconsistency between the indictments for transportation from Missouri into Kansas and receipt of those same weapons in Kansas. There is no doubt that the government’s proof supports its theory that the guns were stolen by the defendants in Missouri and transported into Kansas. The problem arises from the government attempt to sustain the convictions and sentences for receiving the guns in Kansas.
In order retroactively to support these apparently inconsistent convictions, the government imaginatively refashions the English language. It suggests that “receipt” is a continuous act under 18 U.S.C. § 922(h) and that Cantrell therefore “received” the weapons at all times that he possessed them — from Missouri to Kansas. To bolster its contention that receipt and possession are synonymous the government quotes from one of the congressional committee reports for the Federal Gun Control Act of 1968. As quoted by the government, the passage reads:
The principal purposes of title IV [of which 18 U.S.C. § 922(h) is a part] are to aid in making it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background or incompetency . . . . S.Rep.No. 1097, 90th Cong., 2nd Sess., reprinted in [1968] U.S.Code Cong. & Admin.News, pp. 2112, 2113.
Brief for Appellee at 12 (emphasis added by appellee). Rather than accepting a common sense interpretation of this passage — that by making particular acts like “receipt” criminal, Congress intended to deter the ultimate act, possession — the government contends in effect that ultimate statutory purpose should blur precise statutory language: “Clearly, § 922(h) was not designed to discourage the momentary offense of receiving, but rather the continuing offense of receiving or of possession.” Brief for Appellee at 12. Taken one step further, the government’s argument would in effect lead to the absurd conclusion that §§ 922(h) and 922(i), because of their common purpose, are indistinguishable. Under this analysis, we would be left with a double conviction for the same “continuing offense of receiving or of possession,” a result we could not countenance.
In another attempt to sustain its position, the government argues that the jury could have found that Cantrell “re-received” the weapons in Kansas after having transported them there. Since the weapons remained in the trunk of the co-defendant’s car and the co-defendant picked up Cantrell on the way to the sting operation, the government suggests that Cantrell “temporarily lost possession” and later regained it. Brief for Appellee at 9-10. We believe that no jury would formulate such a bizarre theory and, as a matter of law, no jury should be permitted to attach such a meaning to “receipt.” Under neither common sense nor the law do we “receive” our possessions anew each time we come upon them.
The government suggests a final theory to salvage the apparently inconsistent counts of the indictment. It argues that evidence of receipt in Missouri satisfies the indictment for receipt in Kansas and that this case involves a mere harmless variance between indictment and proof. If Cantrell had been charged with receipt only, the variance in the place of the offense would perhaps have been harmless. See United States v. Frazier, 545 F.2d 71 (8th Cir. 1976), cert. denied, 429 U.S. 1078, 97 S.Ct. 823, 50 L.Ed.2d 798 (1977). However, when a defendant is charged with apparently inconsistent counts in a single indictment and the government removes the inconsistency only at trial, if at all, we cannot say that the defendant “could . . . have anticipated what the evidence would be at trial.” Brief for Appellee at 10, citing United States v. Freeman, 514 F.2d 1184 (10th Cir. 1975). The government has succeeded in sustaining consecutive sentences for unlawful transportation. We cannot say that the unfairness involved in the substantial variance between the indictment on the one hand and the government’s theory on the other hand is sufficiently harmless to sustain the addition of two more lengthy terms in sequence.
The conviction is affirmed as to counts one and three (interstate transportation) and reversed as to counts two and four (receipt).
. Section 922(i) reads: “It shall be unlawful for any person to transport or ship in interstate or foreign commerce, any stolen firearm or stolen ammunition, knowing or having reasonable cause to believe that the firearm or ammunition was stolen.”
. In pertinent part, § 922(h) reads: “It shall be unlawful for any person . . who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
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_appnatpr
|
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 appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Paul J. CHURCHILL, Defendant-Appellant.
No. 73-1098.
United States Court of Appeals, First Circuit.
Heard June 5, 1973.
Decided Aug. 15, 1973.
Philip G. Koenig, Boston, Mass., by appointment of the Court, for defendant-appellant.
Terry Philip Segal, Asst. U. S. Atty., Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.
Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.
LEVIN H. CAMPBELL, Circuit Judge.
Appellant was convicted of eleven counts of a twelve-count indictment charging him with aiding and abetting misapplication of funds of a Small Business Investment Company, aiding and abetting in the participation in those funds, and conspiring to misapply and participate in the funds. 18 U.S.C. § 657, 18 U.S.C. § 1006. Two co-defendants, McCullough and Chisholm, were also convicted. The essence of the fraudulent scheme was that funds from American Capital Corporation (Capital), whose principal officer and owner was McCullough, were unlawfully diverted to four corporations controlled by appellant, and found their way back to Capital and McCullough, for the latter’s personal benefit.
While appellant lists in his brief eleven issues on appeal, he argues essentially three issues:
1. Was the indictment a result of the government’s improper use of civil proceedings to obtain evidence for a criminal prosecution?
2. Did the delays in bringing the indictment and in bringing appellant to trial violate his rights to due process and a speedy trial ?
3. Did the failure of the government to introduce evidence to prove one step in a transaction illustrated for the jury on a chart require the grant of defendant’s motion of a directed verdict as to one count and fatally prejudice his conviction on all other counts ?
I
Appellant’s contention that the government deliberately used civil proceedings to prepare a criminal case against him raises a question which has come up more frequently as investigations by government agencies implicate criminal as well as civil liability. Cf. United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970); Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971).
Capital was a Small Business Investment Company regulated by the Small Business Investment Act of 1958, 15 U. S.C. § 661 et seq. McCullough bought the company in 1965, and shortly thereafter, through the spring of 1966, he and the co-defendants allegedly committed the fraudulent transactions. In June, 1966, the Small Business Administration (SBA), having learned of possible violations of law by McCullough, began an investigation pursuant to authority conferred by § 687b. On the basis of this investigation, SBA officials suspected criminal violations as well as violations of its own regulations; it discussed the criminal aspects with the Justice Department and was told that, because of gaps in evidence, the case should not be referred for criminal prosecution.
The SBA in late 1966 initiated a civil action against Capital in the district court, alleging Capital’s failure to meet, interest payments and to file periodic reports. See 15 U.S.C. § 687c. The court awarded the SBA a money judgment of $306,377.08, appointed it receiver of the corporation, and appointed SBA attorney O’Donnell attorney for the receiver. Meanwhile, the SBA continued to seek certain bank records that would help close gaps in the evidence.
In 1967, unknown to the SBA, one Shepard Spunt brought an involuntary petition in bankruptcy against McCullough. Informed of the proceeding, O’Donnell applied for and was granted permission to enter an appearance in the so-called 21(a) hearings. See 11 U.S.C. § 44(a). Though suspicious of criminal conduct, O’Donnell’s purpose, he subsequently testified, was to discover where the money from Capital had gone and to collect it. He later filed a claim on behalf of the receiver against McCullough for $190,000.
McCullough and others, but not appellant, were subpoenaed and questioned at the 21(a) hearings by O’Donnell, Spunt, and the counsel for the trustee. They were not told that criminal conduct was suspected, nor advised of their right to remain silent. In June, 1968, before the hearings were completed, but after testimony had been elicited closing many of the evidentiary gaps, the SBA referred the ease to the United States Attorney, and the hearings were closed, at the SBA’s request. Attempts to obtain bank records continued. Indictments came down on November 23, 1970, shortly before the statute of limitations was to expire.
In United States v. Kordel, supra, the Food and Drug Administration brought a civil action against the defendants and obtained discovery, and thereafter initiated a prosecution. In sustaining the convictions against arguments that the government’s conduct was so unfair and wanting for justice as to violate due process and proper standards for administration of justice, the Court said, in dictum: “We do not deal here with a case where the Government has brought a civil action solely to obtain evidence for its criminal prosecution . . . . ” 397 U.S. at 11-12, 90 S.Ct. at 769.
Appellant argues, focusing on the SBA’s role in the 21(a) hearings, that this is such a case. The district court on appellant’s motion to dismiss ruled otherwise. It said:
“The record is clear that the United States did not initiate or instigate the bankruptcy proceedings and that it did not use or abuse its civil investigatory powers by using the bankruptcy hearings, as a ruse to obtain evidence for a criminal case. The record is clear that the Small Business Administration became a party to the bankruptcy proceeding in order to protect the Government’s financial interests due to loans made by that agency.”
We put aside the question of standing, since we think that the district court was warranted in finding that the SBA’s purpose was not improper. The SBA did not initiate the bankruptcy proceeding against McCullough. Its appearance and role in the 21(a) hearings were proper and perhaps mandatory, since as receiver it was charged with locating Capital’s assets it believed McCullough had fraudulently taken from Capital. It is true, of course, that it was wearing two hats at the time, since it was simultaneously pursuing its investigation of Capital, which it suspected might uncover criminal conduct as well as civil violations. But we cannot conclude on the record before us that its sole purpose in intervening in the 21(a) hearings was to gather evidence for a criminal prosecution.
It is, of course, difficult in cases where the government pursues civil and criminal investigations jointly to determine what the government purpose is, if there is any single purpose. The problem arises recurrently in income tax investigations that may lead to criminal as well as civil liability. In Donaldson, supra, it was urged that an Internal Revenue summons proceeding could not be used to aid an investigation that could result in a recommendation of a criminal prosecution against the taxpayer. The Court held that the government’s purpose was proper as long as the summons was used before the case was actually referred for prosecution. 400 U.S. at 533, 91 S.Ct. 534. In Kordel, too, the civil discovery, though occurring while the FDA contemplated initiating criminal proceedings, took place before the case was referred to the Justice Department for prosecution. See 397 U.S. at 4-6, 90 S.Ct, 763.
In Donaldson, the Court said that to prevent the IRS from pursuing joint investigations would “thwart and defeat the appropriate investigatory powers that the Congress has placed in ‘the Secretary or his delegate.’ ” 400 U.S. at 533, 91 S.Ct. at 544. Similarly here, to prevent the SBA from intervening in the 21(a) hearings would be to prevent it from carrying out its duties as receiver. We have said that, with respect to income tax summonses, where the purpose is “mixed” it is “proper”. McGarry v. Riley, 363 F.2d 421, 424 (1st Cir. 1966), cert. denied, 385 U.S. 969, 87 S.Ct. 502, 17 L.Ed.2d 433 (1966). The same proposition applies to the instant ease. But see United States v. O’Connor, 118 F.Supp. 248 (D.Mass. 1953).
II
Appellant contends that the pre- and post-indictment delays, and the combination of the two, violated his speedy trial and due process rights. We find merit in neither of his contentions.
The Sixth Amendment speedy trial provision does not apply to the period before indictment, at least until the defendant is arrested. United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). See United States v. Cabral, 475 F.2d 715 (1st Cir. 1973). Appellant argues, however, that his due process rights were violated, relying on the Supreme Court’s statement that
“the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this ease caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain a tactical advantage over., the accused.” 404 U.S. at 324, 92 S. Ct. at 465 (footnote omitted).
But deciding that the government did not improperly use the 21(a) proceedings, we find neither that the government delayed in order to gain a tactical advantage nor that its use of the evidence from the 21(a) hearings was prejudicial. Indeed, it is clear from the record that the delay between the commission of the crime and the indictment was due to the lack of sufficient evidence to prosecute. The government can hardly be faulted for not bringing an indictment on insufficient evidence.
The period between indictment and trial was over 26 months. We recognize that this was an inordinate delay. See United States v. Butler, 426 F.2d 1275, 1277 (1st Cir. 1970). However, in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court held that the length of delay is only one of several factors to be weighed and balanced in determining whether the right to speedy trial has been denied. 407 U.S. at 530, 92 S.Ct. 2182. When we look to the other factors the Court mentioned, we conclude that the right has not been abridged.
First, the reasons for the delay. The appellant does not contend that the government deliberately delayed bringing him to trial. At most, it can be said that a crowded criminal docket and lack of judges may have contributed to the delay. This would be what the Court has described as “[a] more neutral reason [than deliberate government delay that] should be weighed less heavily but nevertheless should be considered . . . . ” 407 U.S. at 531, 92 S.Ct. at 2192. Other factors, however, contributed to the delay, not the least of which were the defendant’s discovery motions and the time necessary for response, and the fact that appellant had a change of counsel three months after the indictment. While the government’s own discovery motions contributed to the delay, we cannot attribute it solely to the government’s action or inaction. Indeed, on one occasion the government filed a motion to compel speedy filing of the defendant’s'pretrial motions brief.
Second, the defendant’s responsibility to assert his right. In Barker the Court said that failure to assert the right to a speedy trial does not constitute a waiver of the right. 407 U.S. at 528, 92 S.Ct. 2182. But it also said:
“The defendant’s assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” 407 U.S. at 531-532, 92 S.Ct. at 2193.
The defendant did not assert his right until almost two years after the indictment was returned, and the case was tried three months afterwards. As late as nine months after the indictment was returned, appellant stated in a memorandum: “Defendant and his counsel are far short of completing their pre-trial investigation of the facts . . . . ” This statement, combined with silence on the part of defendant throughout most of the period of delay, indicates that appellant for most of the time was not averse to the protracted nature of the proceedings.
Third, prejudice to the defendant. The Court has identified three interests of the defendant which the Sixth Amendment is designed to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” 407 U.S. at 532, 92 S.Ct. at 2193 (footnote omitted). Appellant was not incarcerated prior to trial. He has pointed to no specific instances of prejudice resulting from the delay, saying only that “[a] full transcript of this trial . would reveal several instances where witness [sic] testified to loss of memory with respect to the transactions which were the subject of the indictment.” We cannot find prejudice to the appellant on the basis of such a vague reference as this. While we agree that “[l]oss of memory ... is not always reflected in the record because what has been forgotten can rarely be shown,” Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2193 we cannot simply assume that the defendant was prejudiced by the delay here, especially where much of the evidence was documentary. We may assume that the delay did nothing to “minimize anxiety and concern” of the defendant, but even on this score appellant has shown little to evidence the effect of the delay on his personal life.
Balancing all these factors, we find that the length of the delay is the factor most favorable to the appellant’s contention; the other factors are not in his favor. Whether we view the pre-indictment and post-indictment delay separately or in combination, we conclude that appellant’s right to a speedy trial was not abridged.
Ill
In its opening and closing arguments, the government showed to the jury charts purporting to illustrate each step in the alleged fraudulent transactions. At a pretrial conference, when defendant objected to the use of the charts, the trial court warned the prosecution that failure to prove the transactions illustrated might prejudice the government's case. The charts were not admitted into evidence. During the trial, the government did, in fact, provide very extensive evidence, much of it documentary, supporting most of what was shown on the charts. However, it did not introduce direct evidence of a letter described in one of seven boxes detailing a sequence of transactions under Count 11. Using the chart, appellant during his closing strenuously argued to the jury the purported lack of proof on this point. Appellant now contends that the government’s failure to offer direct proof concerning one alleged step in the transaction under Count 11 required the grant of his motion for a directed verdict on that count. Moreover, he argues that the use of a chart combined with the failure to support an item shown thereon fatally prejudiced his conviction on all counts.
We view the evidence, of course, in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). From the portions of the trial transcript provided us, see F.R.A.P. 10(b), which consist of part of the government’s opening argument and part of the closing arguments of both the government and defense counsel, we are unable to conclude that the evidence was insufficient as a matter of law to support appellant’s conviction under Count 11. It is not disputed that the prosecution introduced direct evidence tending to establish six of the seven essential parts of the alleged illegal transaction. By reference to this evidence and to the similar pattern of conduct proven with respect to the other counts, we think the jury could reasonably infer the missing element without having direct proof.
The abbreviated transcript limits our review of appellant’s contention of prejudice from the chart. We do not know whether cautionary instructions were requested or given. This is not, in any event, a situation, illustrated in cases cited by both appellant and appellee, where summaries of evidence, in chart form or otherwise, are themselves admitted as evidence. Cf., e. g., Holland v. United States, 348 U.S. 121, 128, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Lloyd v. United States, 226 F.2d 9, 16-17 (5th Cir. 1955); United States v. Goldberg, 401 F. 2d 644, 647-648 (2d Cir. 1968), cert. denied, 393 U.S. 1099, 89 S.Ct. 895, 21 L.Ed. 2d 790 (1969). See also United States v. Flynn, 481 F.2d 11 at 13 (1st Cir. 1973). In such cases, when the summary is not supported by underlying evidence, the danger of prejudice is especially great. Here, the jury did not take charts with them to the jury room and the alleged failure of proof concerned only one aspect of one of many counts. The government states that it supported its case by 105 exhibits. We are unpersuaded that display of the chart constituted prejudicial error.
Appellant was sentenced to be confined for three years under each of the eleven counts on which he was convicted, the sentences to run concurrently. He does not contend that the evidence was insufficient to convict under any of these counts, save Count 11. Even if there were a failure of proof or some prejudice connected with the conviction under Count 11, the argument that these factors might have so misled the jury as to cause it to convict the appellant under the other ten counts is implausible.
We have considered appellant’s other contentions on appeal and likewise find them to be without merit.
Affirmed.
. Appellant was not questioned at the 21(a) hearings. Normally, one cannot vicariously assert the rights of others victimized by alleged governmental misconduct. See Wong Sun v. United States, 371 U.S. 471, 491-492, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ; Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ; Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).
. Donaldson, concerning the scope of the authority for issuing summonses con- . ferred by 26 U.S.C. § 7602, is not strictly on point. However, we think the principles stated there are equally applicable here.
. We have not been provided a transcript of the testimony. See infra, part III.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_direct1
|
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.
J. D. WALLACE &. CO. v. PORTABLE POWER TOOL CORPORATION.
No. 4475.
Circuit Court of Appeals, Seventh Circuit.
June 16, 1931.
Rehearing Denied Sept. 22, 1931.
Fred M. Davis, Wm. E. Anderson, and Wm. R. Rummler, all of Chicago, Ill., for appellant.
Walter F. Murray and Frank L. Zugelter, both of Cincinnati, Ohio, and George E. Waldo, of Chicago, Ill., for appellee.
Before ALSCHULER and SPARKS, Circuit Judges, and LINDLEY, District Judge.
LINDLEY, District Judge.
Appellant appeals from a decree dismissing its bill of complaint for infringement of letters patent No. 1,314,291 issued to- Wallace. The district court found that appel-lee does not infringe.
Wallace described and claimed a combination of elements intended to produce, over the prior art, an improved circular sawing device and accompanying appliances. Claim 12, said to be typical of all claims in suit, is as follows: “The combination with a saw-table having a slot and a circular saw projecting through the slot, of a guard substantially concentric with the saw and also projecting through the slot and presenting a nose normally disposed for engaging the stop in advance of the saw, means for simultaneously adjusting the positions of the axis of the saw and of the guard with respect to the table, and means for normally maintaining the nose of the guard in its position regardless of the said adjustment.”
Thus Wallace adopted the teachings of the art in mounting a circular saw upon a fixed table, having a slot in which the saw moved as it worked, covered by an automatic guard. He provided means for tilting the saw in various angles, so that the work could be performed satisfactorily in the variously tilted positions. Other patentees (such as Grosvenor No. 96,224) had previously provided for similarly tilting the saw, while others (such as Evans No. 1,163,517) had provided efficient automatic guards. It remained for Wallace to unite these two functions in one combination. Apparently he accomplished nothing more, unless it be the additional advantage of a narrow slot. Consequently, if we are to concede validity to his patent, it follows that in view of the scope of the prior art his invention must be narrowly limited to the specific device described and claimed.
Wallace, aeording to his specifications, was attempting to improve circular saws operating on fixed tables by making them adjustable and providing for them automatic guards. The statements in the patent concerning the difficulty in tilting the table and, in proper lighting of the work when such tilting occurs, the limitation upon the size of the material to be handled upon a saw table and the displacement of waste by the guard after the material has moved past the saw disc, are applicable not to a comparatively light portable saw such as appellee’s, but to one operating upon and through a slotted eompara-tively heavy fixed table. In view of the operation described in the patent by the saw-table specified in the claims, the patentee manifestly had in mind a stationary table upon which the material was placed for manual movement and manipulation, a stationary base upon which material could be supported, advanced toward, and fed into, the saw. Wallace’s file wrapper contents indicate that the mere mounting of an automatic guard, shown in the prior art, was not sufficient to achieve invention, but that he relied upon being able to achieve tilting, likewise old, while using a comparatively narrow slot, a result he claimed not possible under the teachings of the prior art. Such narrow slot had the advantage of additional safety in the operation of a saw upon a supporting table, — an advantage that does not apply to the portable type, such as defendant’s device which runs over the material. We believe, therefore, that Wallace’s invention, if any, lay in the specific combination of an automatically guarded saw, affixed to and operating upon a substantial supporting table, operating through a narrow slot therein, capable of adjustment in various angles through tilting means provided for that purpose. The language of the court in Majestic Electric Appliance Co. v. Hicks, 24 F.(2d) 165, 166, is pertinent in this connection. There we said: “In brief, all the elements of the appellee’s combination are found in the prior art. What he added was a skillful arrangement of the elements, an increase in the size and number of members of the hollow electric heating element, an improvement in the form of the reflector and the back plate, all of which conduced to the efficiency of his heater, made it acceptable to the trade, and resulted in its extensive adoption for heating purposes. But in view of the prior art it must be held that he is entitled to but a narrow construction of his claims, and is substantially limited to his details of construction.” If Wallace’s claims are not so limited, we would be forced to conclude that they are invalid as any advance upon the prior art, and that they do not patentably distinguish the device described from the prior art.
Appellee’s portable saw, alleged to infringe, is manufactured under and in accordance with the Billingsley reissue patent No. 17,087 which is a part of the art covering portable species of power sawing and cutting devices. Presumptively this patent is valid and does not infringe, and the burden of proof was upon appellant to overcome that presumption. Fore Electrical Co. et al. v. St. Louis Electrical Works et al., 280 F. 49 (C. C. A. 8); Boyd v. Tool Co., 158 U. S. 260, 15 S. Ct. 837, 39 L. Ed. 973.
Examining the facts in this connection, we find that appellant’s patent is within the art covering heavy stationary sawing devices, and "appellee’s within that covering light portable types. In the first, the saw is fixed to a heavy table upon whieh the work advances to the saw. In the second, an artisan pushes the saw over stationary material, usually a part of a larger structure, such as a floor. Such portable devices make use of no slotted saw tables or material-bearing support. In them the saw is placed upon and operates through a wide slotted foot base whieh is held parallel to and upon the material and slides over the latter as the work progresses. The heavy table type supports the material upon the stationary table, and the lumber advances thereon. The portable device rests and advances upon the material, whieh does not change position.
Finding as we do that the claims of the patent relied upon are limited, as above indicated, and that appellee’s' device does not cerne within the teachings thereof, but rather within the teachings of the presumptively valid Billingsley patent above referred to, it follows that there is no infringement, and that the decree of the district court should be, and is, affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_appel1_1_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 "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
ELKO LAMOILLE POWER CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 6399.
Circuit Court of Appeals, Ninth Circuit.
June 15, 1931.
Milton B. Badt and James Dysart, both of Elko, Nev., for petitioner.
G. A. Youngquist, Asst. Atty. Gen., and Sewall Key, J. P. Jackson, and Norman D. Keller, Sp. Asst, to Atty. Gen. (C. M. Char-est, General Counsel, and William E. Davis, Sp. Atty., Bureau of Internal Revenue, both of counsel), of Washington, D. C., for respondent.
Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.
NETERER, District Judge.
The petitioner is a Nevada corporation engaged in power and light business at Elko, Nev. In 1924 a bond issue of $100,000 was authorized; $90,000 was sold, of which $15,-000 was thereafter retired. It later became necessary to secure further funds, and it was concluded to issue preferred stock instead of selling available bonds. In 1925 $80,000 preferred stock, bearing 7 per cent, dividends, payable semiannually, preferred as to income and assets, callable after three years at 110, was authorized. The stoek certificates contained the following provision: “The dividends on the preferred stoek shall he cumulative and shall be payable before any dividends on the common stoek shall be paid or set apart, so that if in any year dividends amounting to seven per cent, shall not have been paid thereon, the deficiency shall be payable before any dividends shall be paid upon or set apart for the common stock. ® ** * In the event of any liquidation or dissolution or winding up * * * of the corporation, the holders of the preferred stock shall be entitled to be paid in full, both the par value of their shares and the unpaid dividends accrued thereon, before any amount shall be paid to the holders of the common stoek, and after the payment to the holders of the preferred, stock of its par value and the unpaid accrued dividends thereon, the remaining assets and funds shall be divided and paid to the holders of the common stock according to their respective shares. * * *• The preferred stoek shall be without voting power, said right being restricted to the com-; mon stock. Redeemable after 3 years at 110.”
In its tax return the petitioner treated the issue of preferred stock as an indebtedness and deducted the dividends from its return as interest. The only issue before the court is whether the preferred stockholders can be treated as creditors.
Section 234 (a) (2) of the Revenue Act of 1926 (26 USCA § 986 (a) (2) provides that to determine the net income of a corporation there may be deducted 'from the gross income all interest paid on indebtedness. Article 564 of Treasury Regulations 69, promulgated under section 1101 of the Act of 1926 (26 USCA § 1245) provides that “so-called interest on preferred stock, which is in reality a dividend thereon, cannot be deducted in computing net income.”
The distinction between common stockholders and preferred stockholders may be said to be that the common stockholder is an •owner of the enterprise in the proportion that his stock bears to the -entire stock, and entitled to participate in the management, profit, and ultimate assets of the corporation. A stock certificate is evidence of the shares owned. Edwards v. Wabash Ry. Co. (C. C. A.) 264 F. 610.
A preferred stockholder is a mode by which a corporation obtains- funds for its enterprise without borrowing money or contracting a debt, the stockholder being preferred as to principal and interest, but having no voice in the management. State ex rel. Thompson v. C. & C. R. R. Co., 16 S. C. 524. It differs only from other stocks in that it is given preference and has no voting right.- A preferred stockholder is not a creditor of thp company. Scott v. Baltimore & O. R. Co., 93 Md. 475, 49 A. 327; Lockhart v. Van Alstyne, 31 Mich. 79, 18 Am. Rep. 156. The preferred stock was sold by the president and secretary of the petitioner, acting as salesmen, on representations that the holders could return it at any time and receive the amount paid, together with accumulated dividends. Upon refusal of the revenue officers to recognize the preferred stoek as a debt, and the dividends thereon as interest as upon a loan, a resolution was passed in 1928 by the board of directors which recites :
“Whereas, the Department of the Treasury of the United States of America, in reaching a conclusion as to the nature of the certificates, has held the oral representations made to the purchaser as insufficient to estab-‘ lish the liability of this corporation to redeem the same upon presentation and, through such holding, has determined that the said certificates are in fact preferred stoek, and the payments thereon dividends and not interest;
“Now, therefore, be it hereby resolved;
“1. That the corporation hereby ratifies, approves and confirms-the oral representations made by this corporation to the purchasers of the said so-called certificates of preferred stoek, to the effect that they may be redeemed at any time upon presentation and demand at par and accrued interest.
“2. That these resolutions take effect as of the dates of the respective sales of any of such preferred stoek.
“3. That such certificates of preferred stock be deemed and are hereby declared to be certificates of indebtedness of this corporation, payable upon presentation and demand, at par and accrued interest, and that this corporation acknowledges itself obligated accordingly.”
On the books, the preferred “stoek was carried as preferred stockholders' interest ae-count.” Neither the resolution passed long after the sale of the preferred stock nor the method of bookkeeping have any probative value; nor have the representations of the president and secretary as stock salesmen. They had no power to bind the corporation, except as conferred by law or by-law, and there is no law or by-law cited to the court. Tax liability is predicated upon express provisions of the revenue laws. Gulf Oil Corp. v. Lewellyn, 248 U. S. 71, 39 S. Ct. 35, 63 L. Ed. 133; Kadow v. Paul, 274 U. S. 175, 47 S. Ct. 561, 71 L. Ed. 982. The assets of a corporation are a trust fund, and the directors may not arbitrarily change the status of stockholders into that of general creditors. Spencer v. Smith (C. C. A.) 201 F. 647; Armstrong v. Union Trust & Savings Bank (C. C. A.) 248 F. 268. The status of the tax liability between the corporation and the United States was fixed on the issuance of the preferred stock. The agreement of the salesmen officers was a collateral agreement between the officers and the stockholders. The evidence presented establishes that the stock was purchased by the stockholders upon the representation that they could bring it back at any time and get their money and dividends. Several testified that they considered it a loan. This evidence can have no probative value. The sale was effected with a collateral understanding that they would be redeemed on demand. “The rights of the holders of preferred stock in this case must be determined by the language of the stock certificate.” Warren v. King, 198 U. S. 389, 396, 2 S. Ct. 789, 795, 27 L. Ed. 769.
Arthur R. Jones Syndicate v. Commissioner of Internal Revenue (C. C. A.) 23 F.(2d) 833, relied upon by the petitioner, is clearly distinguishable. In that case the corporation hád issued preferred and common stock. It needed funds, and in an attempt to negotiate for additional funds 14 per cent, interest was exacted. The company was advised that the rate was usurious and might be pleaded. The court says: “In order to avoid any head-on conflict with the Illinois usury law * * * Jones revamped his stock set-up and provided for first preferred, second preferred, and common certificates. * *■ The articles of the syndicate provided that the first preferred shares were to be redeemed ‘on July 1,1922, by payment of the par value thereof plus a dividend at the rate of 14 per cent, per annum from the date hereof to the date of such payment.’ ”
There were other stipulations not here applicable. The preferred stock was a direct obligation with a definite date for payment. In the instant case the preferred, stock could, at the option of the corporation, be redeemed within three years at 119. There was, however, no obligation to redeem. In the Jones Syndicate there was an express provision to pay at five years. It was in effect a bond payable in five years.
The Supreme Court in Warren v. King, 198 U. S. 389, 2 S. Ct. 789, 27 L. Ed. 769, in passing upon the rights of stockholders, creditors, and preferred stockholders, held (syllabus): “That the preferred stockholders had no claim on the property superior to that of creditors under debts contracted by the company subsequently to the issue of the preferred stock, and that their only valid claim was one to a priority over the holders of common stock.” And, at page 399 of 108 U. S., 2 S. Ct. 789, 797: “There is nothing in the certificate which clothes them with a single attribute of a creditor, while it specially gives them, as stockholders, an equal interest with the common stockholders in the excess of net earnings in each year, after paying therefrom 7 per cent, on each share of stock, preferred and common.”
See, also, Hamlin v. Toledo, St. L. & K. C. R. Co. (C. C. A.) 78 F. 664, 36 L. R. A. 826; Ellsworth v. Lyons (C. C. A.) 181 F. 59; Spencer v. Smith (C. C. A.) 291 F. 647; Armstrong v. Union Trust & Savings Bank (C. C. A.) 248 F. 268.
Necessities may permit evidence aliunde of the contract to unfold the real character of the transaction. Mere necessities of the borrower who pays a usurious rate of interest makes it necessary for courts to admit his oral testimony to dispute his written word. Houghton v. Burden, 228 U. S. 161, 33 S. Ct. 491, 57 L. Ed. 789. But in the instant ease there is no evidence of any necesssity; surplus bonds unissued; no suggestion of usurious demands, or usury law to be avoided; nothing whatever to indicate anything out of the ordinary and usual relation in the issuance of the preferred stock; nor an issue of preferred stock payable at a definite time.
Affirmed.
Revenue Act of 1918, c. 18, 40 Stat. 1057, 1077, § .234(a) (2) ; Regulations 45, art. 564; Revenue Act of 1921, c. 136, 42 Stat. 227, 254, § 234(a) (2); Regulations 62, art. 664; Revenue Act of 1924, o. 234, 43 Stat. 253, 283, § 234(a) (2), 26 USCA § 986(a) (2) ; Regulations 65, art. 564; Revenue Act of 1926, c. 27, 44 Stat. 9, 41, § 234(a) (2), 26 USCA § 986(a) (2); Regulations 69, art. 564; Revenue Act of 1928, c. 852, 45 Stat. 791, 799, § 23(b), 26 USCA § 2023(b); Regulations 74, art. 141. Heiner v. Colonial Trust Co., 275 U. S. 232, 48 S. Ct. 65, 72 L. Ed. 256; Brewster v. Gage, 280 U. S. 327, 337, 60 S. Ct 115, 74 L. Ed. 457.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
NEWPORT AIR PARK, INC., Plaintiff, Appellee, v. UNITED STATES of America, Defendant, Appellant.
No. 7317.
United States Court of Appeals First Circuit.
Dec. 4, 1969.
Alan S. Rosenthal, Atty., Dept. of Justice, with whom William D. Ruckelshaus, Asst. Atty. Gen., Edward P. Gallogly, U. S. Atty., and Daniel Joseph, Atty., Dept. of Justice, were on brief, for appellant.
Marsha E. Swiss, Washington, D. C., with whom Bruce G. Sundlun and Amram, Hahn & Sundlun, Washington, D. C., were on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
ALDRICH, Chief Judge.
Due to the negligence of appellant United States and appellee Newport Air Park, Inc., two airplanes collided at the Warwick, Rhode Island airport. Appellee settled the ensuing injury claims, and appellant, pursuant to a local statute requiring contribution, reimbursed appellee to the extent of one-half of its outlay. This it did because the waiver contained in the Federal Tort Claims Act, FTCA, extends to claims for contribution when the government is a joint tortfeasor. United States v. Yellow Cab Co., 1951, 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523. The government made one exception, which has resulted in the present lawsuit. One of the persons killed by the collision was a government employee. The government’s obligation to its employees is under the Federal Employees’ Compensation Act, FECA, 5 U.S.C. § 8101 et seq., a statute antedating the FTCA, and similar in content to state workmen’s compensation acts. Section 16(c) of the FECA provides that this is its sole obligation. The government discharged this liability by paying the widow $8,600. Thereafter the widow sued appellee, and recovered $50,000 by way of settlement. As required by section 32 of the FECA, the widow then repaid the $8,600 to the government. Appellee demanded contribution by the government to the extent of $8,600. Citing section 16(c), the government refused. The parties having stipulated to the above facts, the court granted judgment for the appellee, 293 F.Supp. 809, and the government appeals.
Basically it is appellee’s position that the limitation contained in section 16(c) has the purpose of restricting recovery by the employee and his representatives, and is not directed at rights of unrelated third parties. The issue is not that simple. The inquiry must be, what right is appellee seeking to enforce.
It is clear that if appellee’s claim to reimbursement were a strictly independent right, personal to appellee, section 16(c) would not bar such recovery. Weyerhaeuser S.S. Co. v. United States, 1963, 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed. 2d 1. There a private shipowner, whose vessel collided with a government vessel, brought suit in admiralty. A cross libel was filed. Finding both to blame, the court divided the damages. The government, asserting that section 16(c) was a bar to its further liability, objected to the court’s including in the gross damages the amount that Weyer-haeuser was required to pay a government employee injured in the collision. The Court rejected this contention, saying, at p. 601, 83 S.Ct. at p. 929,
“The purpose of § 7(b), added [to the FECA] in 1949, was to establish that, as between the Government on the one hand and its employees and their representatives or dependents on the other, the statutory remedy was to be exclusive. There is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of admiralty law affecting the mutual rights and liabilities of private shipowners in collision cases.”
Appellee cannot take all the comfort from Weyerhaeuser that it might wish. While the result there was to include in the damages to be divided between the parties what Weyerhaeuser had to pay the government employee, Weyerhaeuser had a direct right of action against the government because of the collision with its vessel. The Court held that section 16(c) of the FECA did not bar the inclusion of Weyerhaeuser’s tort liability to the government employee as part of its consequential damages. The resultant division of damages was not contribution, but was in accordance with the admiralty rule of reduced recovery when there is contributory negligence.
The decision below is not supported by Weyerhaeuser, and is inconsistent therewith. The court awarded Weyerhaeuser one-half of what it was required to pay to the government employee, a sum substantially greater than the compensation payment under the FECA. See 9 Cir., 294 F.2d 179. If the Weyerhaeuser principle applied to the case at bar, appellee should recover $25,000, not $8,600. Neither the court below, nor the cases upon which it relied, nor even appellee (see n. 6, swpra) makes that contention.
While on the subject of consistency, we might add that the court’s award of $8,600 is inconsistent with the basic concept of contribution, which is sharing, not payment in full. On appellee’s theory, that the government’s liability of $8,600 was occasioned by joint negligence, it would seem that the obligation should be divided between them. Instead, the government has been made to pay as much as if the negligence had been solely its own. The court’s reasoning, 293 F.Supp. at 815, seemingly that the government should pay one-half of the $50,000, but that “limitless, contribution would probably compel a complete reconsideration of the actuarial basis of compensation insurance,” while supported by a dictum in Elston v. Industrial Lift Truck Co., Inc., 1966, 420 Pa. 97, 216 A.2d 318, and in accord with the Pennsylvania rule as there summarized, seems impermissible ad hoc legislation. Either the government owes $4,300, or, conceivably, $25,000, or it owes nothing.
Although appellee mistakes the effect of Weyerhaeuser, the government places too much reliance upon Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. There the combined negligence of a stevedore and a shipowner resulted in injury to an employee of the stevedore. In the Longshoremen’s and Harbor Workers’ Compensation Act. there are exclusivity and recoupment provisions comparable to the pertinent section of the FECA. The stevedore paid compensation under the Longshoremen’s Act to the injured worker, who then sued the shipowner. The latter demanded that its accountability for damages to the worker be reduced by the amount of the stevedore's payment, and that the stevedore, because of its negligence, be forbidden to recoup from the employee — in effect what is being sought here. Otherwise, it argued, the stevedore would be profiting from its own lack of care. The Court refused, holding that the statutory scheme for workmen’s compensation would be violated by such a result.
The government fails to note the absence in Pope & Talbot of any statute providing for contribution. The ship owner sought to create rights merely from the fact that it was making a payment which benefited the negligent stevedore. This was a circular argument. If the shipowner had prevailed, in whole or in part, the stevedore would, in effect, have been indemnifying the shipowner for its own negligence, contrary to Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 1952, 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318. The circumstances that the shipowner’s payment ultimately benefited the stevedore was res inter alios. The latter’s payment to its employee had nothing to do with negligence, but was contractual indemnity.
An injured party’s insurance does not redound to lessen the liability of the third party who caused the injury. Had the stevedore in Pope & Talbot been an ordinary insurer that had contracted with the employee, the shipowner would have received no benefit from, or credit on account of, the compensation payment. Bangor & A. R. Co. v. Jones, 1 Cir., 1929, 36 F.2d 886; Parmiter v. United States, D.Mass., 1948, 75 F.Supp. 823; Note, Unreason in the Law of Damages: The Collateral Source Rule, 77 Harv.L. Rev. 741 (1964); Rest. Torts § 920, Comment e. Correspondingly, the fact that the employee here had agreed with the government to make a refund in certain circumstances was none of the shipowner’s concern.
We must, accordingly, determine whether the right of contribution as between joint tortfeasors calls for a different result. We think not. We reach this result not by application of rubric— whether the government was a joint tortfeasor or not — because stating the question in such manner tends to assume the point, but by considering the nature of the right of contribution. Contribution does not create direct liability in tort, each towards the other, between two tortfeasors. Rather, as the word implies, it is a right based upon equitable fairness. The right to have the other tortfeasor contribute to his outlay arises in whichever tortfeasor satisfies the loss. It is inequitable that as between two parties jointly liable the ultimate loss should be fortuitously determined by the injured party’s choice of defendant. Gregory, Contribution Among Joint Tortfeasors: A Defense, 54 Harv.L.Rev. 1170 (1941); Leflar, Contribution and Indemnity Between Tortfeasors, 81 U.Pa. L.Rev. 131, 137 (1932); Note, Toward a Workable Rule of Contribution in the Federal Courts, 65 Colum.L.Rev. 123, 125 n. 19 (1965).
As a matter of legal principle the route to contribution must be via subrogation or assignment based upon payment. In such circumstances we would suppose that there would be nothing to be subrogated to if the other party claimed to be a joint tortfeasor, was never under liability to the injured party. Nor do we readily see any unfairness,' so far as the non-liable party is concerned, for he, by hypothesis, receives no benefit from the satisfaction of the other actor’s liability. Some courts, nevertheless, have found unfairness unless the immune party contributes, without, however, explaining where the unfairness lies. See, e. g., Zarrella v. Miller, 1966, 100 R.I. 545, 217 A.2d 673.
With all due respect, compelling contribution here could be said to be a windfall. But if such decisions are sound they cannot affect the case at bar. In Zarrella the party required to contribute was a husband whose negligence, along with the negligence of the party seeking contribution, had injured his wife. Under state law the husband was immune from suit by the wife. The court held, nonetheless, that he was liable to contribute. Even if Rhode Island would extend this principle to override the workmen’s compensation statute, we would not be bound. The immunity being state-created, the state, through its courts, may properly determine its extent. In the case of the FECA the immunity is federally created; its extent must be determined by the federal courts, particularly when the issue is one of government liability.
Looking at the question as one of federal law, we hold that contribution cannot be had from the government when the government was under no tort liability to the injured party. Even when the person obliged to pay was only secondarily liable, and lienee entitled to full indemnity, it has been held that no right arises against the primary actor if, as the employer, he was statutorily immune from tort liability. United Air Lines, Inc. v. Wiener, 9 Cir., 1964, 335 F.2d 379; Bertone v. Turco Products, Inc., 3 Cir., 1958, 252 F.2d 726; Slattery v. Marra Bros., Inc., 2 Cir., 1951, 186 F.2d 134, 139. These are a fortiori cases, as a duty might be thought to arise between one primarily liable directly to the one only secondarily liable. But ef. Slattery v. Marra Bros., Inc., supra, where the court pointed out, in denying recovery, that the only legal relationship was that of joint tortfeasors, each to the injured party. We need not go as far as those courts to hold that contribution is barred in the present case.
The judgment of the District Court is vacated. Judgment for the defendant.
. Rhode Island adopted an early version of the Uniform Contribution Among Joint Tortfeasors Act. R.I.Gen.Laws 10-6-1 et seq.
. While the word “tort” is in the title, the act itself waives the government’s immunity to “claims * * * for * * * personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government * * 28 U.S.O. § 1346(b). In holding that the waiver was to be broadly construed and applied to contribution,' the Court did not address itself to the question whether a claim for contribution by a joint tortfeasor is, strictly, a tort claim. Nor did it otherwise touch on the issues in the case at bar.
. The exclusivity provision with which we are presently concerned was not added until made necessary by the Federal Tort Claims Act. See S.Rep. No. 836, 81st Cong., 1st Sess., quoted by the Court in Weyerhaeuser S.S. Co. v. United States, infra, at 601, n. 5, 83 S.Ct. at 929.
. “The liability of the United States or an instrumentality thereof under this sub-chapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen’s compensation statute or under a Federal tort liability statute. However, this subsection does not apply to a master or a member of a crew of a vessel.” 5 U.S.C. § 8116(c).
. “Adjustment after recovery from a third person. If an injury or death for which compensation is payable under this sub-chapter is caused under circumstances creating a legal liability in a person other than the United States to pay damages, and a beneficiary entitled to compensation from the United States for that injury or death receives money or other property in satisfaction of that liability as a result of suit or settlement by him or in his behalf, the beneficiary, after deducting therefrom the costs of suit and a reasonable attorney’s fee, shall refund to the United States the amount of compensation paid by the United States and credit any surplus on future payments of compensation payable >to him for the same injury. The amount refunded to the United States shall be credited to the Employees’ Compensation Fund. If compensation has not been paid to the beneficiary, he shall credit the money or property on compensation payable to him by the United States for the same injury. However, the beneficiary is entitled to retain at least one-fifth of the net amount of the money or other property remaining after the expenses of a suit or settlement have been deducted, plus an amount equivalent to a reasonable attorney’s fee proportionate to the refund to the United States.” 5 U.S.C. § 8132.
. Actually, the complaint as filed sought the entire $50,000. However, appellee did not appeal from the court’s award of $8,-600, and informs us that this is the proper figure.
. The statement that such limited liability does not interfere with the statutory scheme we cannot accept. It interferes less than would unlimited liability, but, of necessity, it interferes pro tanto.
. The “specific provisions to permit an employer to recoup his compensation payments out of any recovery from a third person negligently causing such injuries * * * [are] to protect employers who are subjected to absolute liability by the Act.” 346 U.S. at 412, 74 S.Ct. at 206, supra.
. Indeed, thinking of the government as wearing two hats, in its capacity as insurer it is reasonable rather than unreasonable to provide that it recovers from a negligent third party.
. Because this is an assignment by operation of law, 31 U.S.C. § 203 forbidding the assignment of claims against the government does not stand in the way. Penn Tanker Co. v. United States, 5 Cir., 1969, 409 F.2d 514.
. A distinction has been drawn. Compare Smith v. Southern Farm Bureau Cas. Ins. Co., 1965, 247 La. 695, 174 So.2d 122 with Yale & Towne Mfg. Co. v. J. Ray McDermott Co., 5 Cir., 1965, 347 F.2d 371; McLaughlin v. Braswell, 1968, 251 La. 1076, 208 So.2d 535; Sanderson v. Burnings Constr. Co., La.App., 1965, 172 So.2d 721. If abstract fairness is the test, in the workmen’s compensation cases the employer, at least overall, does incur contractual liability, which is to be offset by immunity in the individual case. Cf. Pope & Talbot, Inc. v. Hawn, supra.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
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.
FORAKIS v. UNITED STATES.
No. 2655.
Circuit Court of Appeals, Tenth Circuit.
Aug. 20, 1943.
Walter M. Critchlow, of Salt Lake City, Utah (Grant Macfarlane, of Salt Lake City, Utah, on the brief), for appellant.
John S. Boyden, Asst. U. S. Atty., of Salt Lake City, Utah (Dan B. Shields, U. S. Atty., and Scott M. Matheson, Asst. U. S. Atty., both of Salt Lake City, Utah, on the brief), for appellee.
Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.
BRATTON, Circuit Judge.
This appeal is from a conviction of murder in the second degree for the killing of an Indian on an Indian Reservation in Utah.
The jurisdiction of the court is not questioned, the indictment is not attacked, the sufficiency of the evidence as a whole is not challenged, and no complaint is made in respect of the admission or exclusion of any particular testimony. Certain requested instructions were tendered but no point is made of the failure to give them. They are not even mentioned in the brief of appellant. The contentions advanced for reversal of the judgment and sentence relate solely and exclusively to the instructions given by the court. But no exceptions were taken to the instructions. Instead, at the conclusion of the giving of the instructions appellant submitted one suggestion, the court immediately gave an additional instruction covering the matter, and appellant then stated in response to an inquiry of the court that he had nothing further to suggest. Therefore, the questions now presented were not preserved and are not open to review. Lindsay v. Burgess, 156 U.S. 208, 15 S.Ct. 355, 39 L.Ed. 399; Order of United Commercial Travelers v. Greer, 10 Cir., 43 F.2d 499; Kitrell v. United States, 10 Cir., 79 F.2d 259; Scritchfield v. Kennedy, 10 Cir., 103 F.2d 467.
Errors occurring during the trial of a criminal case must be appropriately called to the attention of the trial court by objection, exception, or otherwise, thus affording an opportunity for correction; and ordinarily where that is not done they are not reviewable on appeal. Bogileno v. United States, 10 Cir., 38 F.2d 584; Addis v. United States, 10 Cir., 62 F.2d 329; Williams v. United States, 10 Cir., 66 F.2d 868; Trefone v. United States, 10 Cir., 67 F.2d 954; Strader v. United States, 10 Cir., 72 F.2d 589; Kelly v. United States, 10 Cir., 76 F.2d 847; Edgmon v. United States, 10 Cir., 87 F.2d 13; Crabb v. United States, 10 Cir., 99 F.2d 325; Hayes v. United States, 10 Cir., 112 F.2d 676; Miller v. United States, 10 Cir., 120 F.2d 968; Rose v. United States, 10 Cir., 128 F.2d 622.
That general rule bears the well recognized exception that where life or liberty is involved, an appellate court may notice and correct serious errors which were fatal to the rights of the accused even though they were not challenged or reserved. Bogileno v. United States, supra; Addis v. United States, supra; Williams v. United States, supra; Strader v. United States, supra; Kelly v. United States, supra; Edgmon v. United States, supra; Crabb v. United States, supra; Hayes v. United States, supra; Miller v. United States, supra; Rose v. United States, supra. But no error of that kind is presented here.
The judgment is affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. John Cless GARDINER, also known as Charles D. Worrall, Mark Diamond, Vance Jason, Theodore Jette and Mark Chandler, Defendant-Appellant.
No. 90-3240.
United States Court of Appeals, Tenth Circuit.
April 16, 1991.
Steven K. Gradert, Asst. Federal Public Defender, Wichita, Kan., for defendant-appellant.
Lee Thompson, U.S. Atty., and David M. Lind, Asst. U.S. Atty., Wichita, Kan., for plaintiff-appellee.
Before SEYMOUR, ANDERSON, and TACHA, Circuit Judges.
SEYMOUR, Circuit Judge.
John Cless Gardiner appeals the sentence imposed on him following his guilty plea. Gardiner contends the district court erred by enhancing his offense level by two for obstruction of justice pursuant to United States Sentencing Comm’n Guidelines Manual § 3C1.1 (1989) (hereinafter Guidelines). Gardiner argues on appeal that his offense level was enhanced erroneously because the use of an alias does not merit an obstruction of justice enhancement, and because he did not act with an intent to obstruct justice. We affirm.
This court reviews de novo questions involving legal interpretation of the Sentencing Guidelines. United States v. Davis, 912 F.2d 1210, 1211 (10th Cir.1990). Findings of fact underlying the application of the Guidelines are reviewed subject to a clearly erroneous standard. United States v. Williams, 897 F.2d 1034, 1041 (10th Cir.1990).
An enhancement of two additional offense levels for obstruction of justice is charged against a defendant who “engages in conduct calculated to mislead or deceive authorities ... or otherwise to willfully interfere with the disposition of criminal charges.” Guidelines § 3C1.1 (commentary). In this case, the district court found that because Gardiner had withheld his true identity from law enforcement officers at the time of his arrest and from the United States Magistrate at three separate court appearances, he had perpetrated a “fraud” and obstructed justice. See rec., vol. I, doc. 3; vol. Ill, at ¶ 3 (appearances as “Charles Worral[l]” before U.S. Magistrate); and vol. II, at 27 (findings of sentencing judge).
In arguing that the use of an alias alone does not merit an enhancement under § 3C1.1, Gardiner relies on the November 1, 1990 Application Note 4(a) to § 3C1.1 which states that an obstruction of justice enhancement pursuant to § 3C1.1 is not warranted by “providing a false name or identification document at arrest, except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense.” Application Note 4(a), however, does not control the outcome of Gardiner’s case because he failed to disclose his true identity to a United States Magistrate in three separate appearances, as well as at the time of his arrest. By withholding his identity from the United States Magistrate, Gardiner came within § 3C1.1 as clarified by the 1990 Application Note 3(f), which states that “providing materially false information to a judge or magistrate” merits an obstruction of justice enhancement. .The district court thus correctly interpreted Guidelines § 3C1.1 as permitting an obstruction of justice enhancement under the circumstances of this case based solely on Gardiner’s use of an alias. See, e.g., United States v. Patterson, 890 F.2d 69, 72 (8th Cir.1989) (defendant’s refusal to reveal his true identity to the pretrial services officer and magistrate warranted obstruction of justice enhancement).
Gardiner also argues that the facts surrounding his arrest and prosecution do not demonstrate he acted with an intent to obstruct justice, and that the sentencing judge made no clear-cut finding of intent to warrant an obstruction of justice enhancement. Such an enhancement applies only if the defendant “willfully” obstructed justice. Guidelines, § 3C1.1. Section 3C1.1 has been interpreted as contemplating that a defendant subject to an obstruction of justice enhancement must have acted with a specific mens rea. See United States v. Stroud, 893 F.2d 504, 507 (2d Cir.1990); United States v. Teta, 918 F.2d 1329, 1333 (7th Cir.1990); see also United States v. Wilson, 904 F.2d 234, 235 (5th Cir.1990). In other words, a defendant must have consciously acted with the purpose of obstructing justice. Stroud, 893 F.2d at 507; Teta, 918 F.2d at 1333.
On appeal, Gardiner argues that he did not possess an intent to obstruct justice because: (1) at the time of his arrest he was intoxicated; (2) even though he verbally gave an alias when he was arrested, he gave his driver s license bearing his true identity to the F.B.I.; and (3) at the times he continued to give an alias before the magistrate, he did so on the advice of counsel.
None of these facts preclude a finding of intent in this case. Although Gardiner may have been intoxicated at the time of his arrest, he does not argue he was intoxicated each time he appeared before the magistrate. Although he gave his driver’s license to the F.B.I., he permitted law enforcement officers as well as the court to prosecute him as “Charles Worral[l].” Finally, with respect to Gardiner’s assertion that he acted on advice of counsel so as not to incriminate himself, rec., vol. II, at 12, the district court made the express finding that Gardiner would have used an alias regardless of his attorney’s advice, id. at 16. The record reveals that Gardiner used an alias over a period of several years, rec., vol. Ill, at ¶ 30, including at a time when other criminal proceedings were pending against him, and that Gardiner did not abandon his alias in the instant case until his true name was determined by the F.B.I. from his fingerprints, id. at Í! 9. These facts support the finding that Gardiner intended to obstruct justice.
Contrary to Gardiner’s assertion, the district court made the necessary finding of intent to charge Gardiner with an obstruction of justice enhancement. At one point during the sentencing hearing the district court said it was willing to enhance Gard-iner’s sentence regardless of intent but, in the very next sentence, the court declared: “I think the probation office’s analysis of that [the obstruction of justice enhancement] is a hundred percent correct.” Rec., vol. II, at 27-28. The court was referring to the probation office’s presentence report which explicitly stated: “It is the probation office’s opinion Mr. Gardiner gave the alias Charles Worrall as his name to officials in an effort to obstruct justice knowing that his prior criminal history record would not be learned as easily as it would have been had he provided his true name.” Rec., vol. Ill, at ¶ 73 (emphasis added). The district court thus found that Gardiner had acted with the requisite intent to obstruct justice, and we are not persuaded that this finding is clearly erroneous.
In consideration of the foregoing, we AFFIRM the district court’s application of the obstruction of justice enhancement and sentence of the defendant.
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
. Gardiner was sentenced on July 5, 1990. Rec., vol. I, doc. 29, at 1. The United States Sentencing Commission added additional Commentary and Application Notes to § 3C1.1 effective November 1990. The additions were made in order to clarify the operation of existing Guidelines rather than to change them. See Guidelines, App. C, note 347.
. Similarly, note 4(b) provides that making un-sworn, false statements to law enforcement officers does not warrant an obstruction of justice enhancement unless such a statement significantly obstructed or impeded the official investigation or prosecution of the offense.
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_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
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: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
EGNER et al. v. UNITED STATES.
(Circuit Court of Appeals, Third Circuit.
December 22, 1926.)
No. 3306.
1. Criminal law <§=>163 — Acquittal on charge of maintaining nuisanee is not bar to civil proceeding to abate, same nuisance (National Prohibition Act, tit. 2, § 22 [Comp. St. § 10138 i/2k]).
Acquittal on a criminal charge of maintaining a liquor nuisance is not a bar to civil proceeding under National Prohibition Act, tit. 2, § 22 (Comp. St. § 1013Sy2k), to abate the same nuisance.
2. Intoxicating liquors <§=>280 — In nuisance abatement proceedings, assignment that court erred in not entering judgment for defendants held bad.
Assignment of error that “the court erred in not entering judgment in favor of the defendants and against the complainant,” in proceedings to abate liquor nuisance, held bad.
Appeal from the District Court of the United States ,for the District of New Jersey; John Rellstab, Judge.
Proceeding by the United States against Ray Egner and another (as amended, Louis Alexander and another), to abate liquor nuisanee. Decree for complainant, and defendants .appeal.
Affirmed.
John H. Kafes, of Trenton, N. J., for appellants.
Walter G. Winne, U. S. Atty., of Hackensack, N. J., and Harlan Besson, Asst. U. S. Atty., of Hoboken, N. J., for the United States.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and MORRIS, District Judge.
WOOLLEY, Circuit Judge.
The situation in Murphy v. United States (C. C. A.) 16 F.(2d) 595, which involved an acquittal of the defendants on a criminal charge of maintaining a nuisance and later a decree against them on the civil charge of maintaining the same nuisanee under appropriate. provisions of the National Prohibition Act (Comp. St. § 1013814 et seq.), is repeated in this ease. From the decree closing the premises for one year the defendants appealed and now assign three matters as error, which, abbreviated, are as follows:
(1) Error in entering the decree because the acquittal in the criminal proceeding was a bar to the civil proceeding.
The answer in the negative made by the Supreme Court to this question, certified in Murphy v. United States (C. C. A.) 16 F. (2d) 595, disposes of this assignment.
(2) The findings of the court were against the weight of the evidence.
The evidence, properly weighed, sustains the findings.
(3) “The court erred in not entering judgment in favor of the defendants and against the complainant” — a bad assignment under the rule laid down in The Blakeley (C. C. A.) 285 F. 348, 350.
The decree 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_applfrom
|
L
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
BODELL v. COMMISSIONER OF INTERNAL REVENUE.
No. 3841.
Circuit Court of Appeals, First Circuit.
Nov. 3, 1943.
Richard F. Canning and Ira Lloyd Letts, both of Providence, R. I. (Andrew P. Quinn, of Providence, R. I., on the brief), for petitioner for review.
Joseph M. Jones, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and Helen R. Carloss, Sp. Assts. to the Atty. Gen., and J. P. Wenchel, Chief Counsel, and Ralph F. Staubly, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for Commissioner.
Before MAHONEY, and WOODBURY, Circuit Judges, and SWEENEY, District Judge.
MAHONEY, Circuit Judge.
The question in this case is whether the proceeds of certain insurance policies should be included in the gross estate of the decedent for federal estate tax purposes. The decedent, Frederick Bodell, took out eight policies of insurance on his life on account of which $120,260.07 was paid at his death. He died on June 20, 1938, with his wife, Albina Elise Bodell, surviving him. His executor, Joseph J. Bodell, the petitioner herein, included no part of these proceeds in the decedent’s estate tax return. The Board of Tax Appeals (now The Tax Court of the United States) sustained the determination of the Commissioner of Internal Revenue that all of the proceeds in excess of the $40,000 exemption should be included in the decedent’s gross estate.
The petitioner has appealed from the decision of the Board on only two of the policies. Policy No. 178772, Provident Mutual Life Insurance Company of Philadelphia, was an endowment policy for $5000 taken out by the decedent on October 31, 1911, payable to him on October 31, 1955, if living; otherwise to his mother, if living; otherwise to his estate. The decedent’s wife was irrevocably named beneficiary in place of his mother on May 6, 1918. All the premiums on the policy were paid by the decedent. Policy No. 398704, Massachusetts Mutual Life Insurance Company, was an ordinary life policy for $10,000 taken out by decedent March 1, 1917, originally payable to the mother of the decedent. On October 6, 1917, the beneficiary was changed and the policy was made payable to the decedent’s wife, if living at his death; otherwise to his estate. The right to change the beneficiary at any time was reserved by the decedent. He paid all the premiums on this policy.
By stipulation since the taking of the appeal it has been agreed by the parties that the sole contention of the petitioner is that the proceeds of these two policies should not be included in the gross estate of the decedent on the ground that they were taken out prior to the effective date of the Revenue Act of 1918, 40 Stat. 1057, and that the decedent exercised no rights under the policies subsequent to that date. The petitioner has abandoned the contention that if any part of the proceeds are includible in the gross estate, only the value of the decedent’s interest therein is in-cludible. Therefore that question is not before this court.
The applicable statute is the Revenue Act of 1926, Ch. 27, 44 Stat. 9, as amended by § 404 of the Revenue Act of 1934, Ch. 277, 48 Stat. 680, 26 U.S.C.A. Int.Rev.Acts, pages 227, 231:
“Sec. 302. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, except real property situated outside the United States— * * * * *
“(g) To the extent of the amount receivable by the executor as insurance under policies taken out by the decedent upon his own life; and to the extent of the excess over $40,000 of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life.
“(h) Except as otherwise specifically provided therein subdivisions (b), (c), (d), (e), (f), and (g) of this section shall apply to the transfers, trusts, estates, interests, rights, powers, and relinquishment of powers, as severally enumerated and described therein, whether made, created, arising, existing, exercised, or relinquished before or after the enactment of this Act.” Treasury Regulations 80, 1937 ed., provide :
“Article 25. Taxable insurance. * * * Insurance is considered to have been taken out by the decedent, whether or not he made the application, if he acquired the ownership of, or any legal incident thereof in, the policy; * * * Legal incidents of ownership in the policy include, for example: The right of the insured or his estate to its economic benefits, the power to change the beneficiary, to surrender or cancel the policy, to assign it, to revoke an assignment, to pledge it for a loan, or to obtain from the insurer a loan against the surrender value of the policy, etc.”
Article 27 recites that the proceeds in excess of $40,000 should be included in the gross estate “regardless of when the policy was or the policies were issued.”
In contending that the policies are not includible in the gross estate by reason of the fact that they were taken out prior to the effective date of the Revenue Act of 1918, the taxpayer relies on three cases: Lewellyn v. Frick, 1925, 268 U.S. 238, 45 S.Ct. 487, 69 L.Ed. 934; Bingham v. United States, 1935, 296 U.S. 211, 56 S.Ct. 180, 80 L.Ed. 160, and Industrial Trust Co. v. United States, 1935, 296 U.S. 220, 56 S.Ct. 182, 80 L.Ed. 191.
The proceeds of life insurance policies were first made a part of the gross estate by § 402(f) of the 1918 Act, 40 Stat. 1057, 1098, which became effective on February 24, 1919. Section 302(g) of the 1926 Act, as amended, is identical with § 402(f) of the 1918 Act. The facts in Lewellyn v. Frick, supra, show that the policies had been taken out before the 1918 Act. Some of the policies had been irrevocably assigned before the Act was passed. In others the right was reserved to revoke the assignment. At the date of the insured’s death, there was no clause in the statute making the insurance provision expressly applicable to the proceeds of policies taken out before its enactment and the court refused to apply the statute to a case which arose before its passage.
In Bingham v. United States, supra, the policies were taken out before 1918, made irrevocably payable to the named beneficiaries and the insured retained a possibility of reverter so that if the beneficiaries predeceased him the proceeds would be payable to his estate. Here also, the insured died before the enactment of the clause in the statute making the insurance provisions expressly applicable to pre-1918 policies. There were two grounds of decision. For its first ground, the court relied on the Frick case with its grave constitutional doubts if the Act were construed to apply to policies taken out before 1918. For its second ground, the court held that the retention of a possibility of reverter was not sufficient basis for taxing the policies, citing Helvering v. St. Louis Union Trust Co., 1935, 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, and Becker v. St. Louis Union Trust Co., 1935, 296 U.S. 48, 56 S.Ct. 78, 80 L.Ed. 35, and said at page 219 of 296 U.S., at page 181 of 56 S.Ct., 80 L.Ed. 160:
“ * * * Those principles establish that the title and possession of the beneficiary were fixed by the terms of the policies and assignments thereof, beyond the power of the insured to affect, many years before the act here in question was passed. No interest passed to the beneficiary as the result of the death of the insured. His death merely put an end to the possibility that the predecease of his wife would give a different direction to the payment of the policies.”
In Industrial Trust Co. v. United States, supra, the facts were like those in the Bingham case but the insured died subsequent to the enactment of the Revenue Act of 1924, which introduced § 302(h), 26 U.S.C.A. Int.Rev.Acts, page 68. Although this section specifically referred to § 302(g), the court doubted whether it was applicable to insurance receivable by a beneficiary other than the executor and refused so to construe it for fear of the grave constitutional doubts in the Bingham case.
We think that the Supreme Court has indicated by Helvering v. Hallock, 1940, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, and United States v. Jacobs, 1939, 306 U.S. 363, 59 S.Ct. 551, 83 L.Ed. 763, that the Bingham case is no longer to be followed. In the case before us the insured, in addition to paying all the premiums on the policies, retained in each of them the right of his estate to receive the proceeds should he survive the named beneficiary. Helvering v. Hallock, supra, held that the retention of such a possibility of reverter in the case of a transfer in trust was sufficient to include the trust property in the decedent’s gross estate. It was there decided that the crucial taxable transfer is not the technical conveyance of title, but rather the transfer of economic interests which only occurs when the settlor dies; only then is the beneficiary sure.of his interest. The beneficiary gets nothing unless and until the settlor predeceases him. It is then that the settlor’s string on the policy is cut. That case arose under § 302(c), Revenue Act 1926, as amended by Revenue Act 1932, § 803, 26 U.S.C.A. Int.Rev.Code § 811(c), but its reasoning is equally applicable to § 302(g). Commissioner v. Washer, 6 Cir., 1942, 127 F.2d 446, certiorari denied 317 U.S. 653, 63 S.Ct. 48, 87 L.Ed.-; Chase National Bank v. United States, 2 Cir., 1940, 116 F.2d 625; Bailey v. United States, 1940, 31 F.Supp. 778, 90 Ct.Cl. 644. It also expressly overruled the St. Louis Union Trust cases relied upon in the second part of the Bingham case. Thus the Hal-lock case removes the second ground of the Bingham decision that the retention of a possibility of reverter under an insurance policy is not a sufficient incident of ownership to impose a tax. Chase National Bank v. United States, supra; Bailey v. United States, supra; Estate of Cain v. Com’r of Int. Rev., 1941, 43 B.T.A. 1133. See Paul, Federal Estate and Gift Taxation, 1942, p. 540, § 10.20.
In United States v. Jacobs, supra, real estate was conveyed to the decedent and his wife as joint tenants in 1909. The wife never contributed any part of, or consideration for, the joint property. Section 302(h) was in effect at the decedent’s death. The court held that the entire value of the joint estate was properly and constitutionally includible in the decedent’s gross estate. In response to the taxpayer’s argument that a one-half interest in the joint property was transferred to and vested in the wife in 1909 and could not thereafter be taxed as a part of decedent’s gross estate without retroactively and unconstitutionally applying the tax to the 1909 transfer, the court said, pages 366, 367, 368, of 306 U.S., page 553 of 59 S.Ct, 83 L.Ed. 763:
“But the tax was not levied on the 1909 transfer and was not retroactive. At decedent’s death in 1924, ownership and beneficial rights in the property which had existed in both tenants jointly changed into the single ownership of the survivor. This change in ownership, attributable to the special character of joint tenancies, was made the occasion for an excise, to be measured by the value of the property in which the change of ownership occurred. Had the tenancy not been created, this survivorship and change of ownership would not have taken place, but the tax does not operate retroactively merely because some of the facts or conditions upon which its application depends came into being prior to the enactment of the tax.” The decedent’s death “became the ‘generating source’ of important and definite accessions to the property rights of the other.”
The decedent’s death ripened into full bloom the survivor’s rights in the property. The dissenting opinion followed the earlier reasoning of the Bingham case. The constitutional issue in the case before us is the same as that in the Jacobs case. We believe that United States v. Jacobs with its reasoning which is the same as that of the Hallock case indicates that the first ground of the Bingham case is no longer law. As Paul in his book on Federal Estate and Gift Taxation says, p. 497, § 10.06:
“Any such constitutional qualms have been completely dispelled by the holding in United States v. Jacobs that section 811 (h) [302(h) here] may be applied in taxing the full value of a joint tenancy, the creation of which antedated the federal estate tax. The rationale of this case is equally applicable to pre-1918 insurance policies, assuming that an incident of ownership, a possibility of reverter, or the payment of premiums brings the policy within the ordinary ambit of subdivision (g).”
Cf. Commissioner v. Washer, supra; Estate of Cain v. Com’r of Int.Rev., supra. The Board of Tax Appeals in its opinion in the instant case says that insofar as Estate of Thompson v. Com’r of Int.Rev., 1940, 41 B.T.A. 901, is contrary, it will no longer be followed.
The taxpayer attempts to distinguish the Jacobs case on the ground that a different class of property was there involved. He says that after the passage of the Act the joint tenants might have terminated their joint tenancy and restored the status quo, whereas that would have been impossible without substantial loss in the case of insurance. In Porter v. Commissioner, 1933, 288 U.S. 436, 53 S.Ct. 451, 454, 77 L.Ed. 880, however, there was no possibility whatever of returning to the status quo or of so escaping the tax even at substantial loss. The taxpayer there had transferred his property in an irrevocable trust before the enactment of the applicable subsection of the Act. He reserved the power to alter or modify the terms of the trust but could make no change in favor of himself. The court found it sufficient that his death terminated his control and was “in respect of title to the property in question, the source of valuable assurances passing from the dead to the living.”
With the constitutional doubts of the Bingham case thus dispelled, it seems that the construction of § 302(h) by the Supreme Court in the Industrial Trust Company case should no longer be controlling. See Paul, supra, p. 495, footnote 17, and p. 497. The plain language of § 302(h) makes § 302(g) applicable to pre-1918 policies. It is to be noted that in sustaining the imposition of the tax we place no reliance on the endowment feature of one of the policies.
From the reasoning in the Jacobs and Hallock cases it is also clear that the retention by the insured of the power to change the beneficiary in and of itself would make the proceeds on policy No. 398704 taxable. Commissioner v. Washer, supra; Broderick v. Keefe, 1 Cir., 1940, 112 F.2d 293; cf. Keefe v. United States, 1942, 46 F.Supp. 1016, 97 Ct.Cl. 576, certiorari denied 318 U.S. 768, 63 S.Ct. 759, 87 L.Ed. —, with which compare Braun v. United States, 1942, 46 F.Supp. 993, 98 Ct.Cl. 176, where the insured died in 1919, before the enactment of § 302(h). See Reinecke v. Northern Trust Co., 1929, 278 U.S. 339, 49 S.Ct. 123, 73 L.Ed. 410, 66 A.L.R. 397. As the Supreme Court said in Chase National Bank v. United States, 1929, 278 U.S. 327, 338, 339, 49 S.Ct. 126, 129, 73 L.Ed. 405, 63 A.L.R. 388, concerning policies taken out after 1918:
“Termination of the power of control at the time of death inures to the benefit of him who owns the property subject to the power and thus brings about, at death, the completion of that shifting of the economic benefits of property which is the real subject of the tax. * * * It is the termination of the power of disposition of the policies by decedent at death which operates as an effective transfer and is subjected to the tax * *
Since the taxable transfer is the maturing of the beneficiary’s economic interests in the policy by the death of the insured, the exercise or failure to exercise the right to change the beneficiary after 1918 is immaterial.
The decision of the Board of Tax Appeals is affirmed.
Treasury Regulations 80, 1937 ed., as amended by T.D. 5032, 1941-1 Cum.Bull. 427, added the following sentence: “The insured possesses a legal incident of ownership if his death is necessary to terminate his interest in the insurance, as, for example, if the proceeds would become payable to his estate, or payable as he might direct, should the beneficiary pre-decease him.” Article 25 of the 1934 edition of Regulations 80 had previously included a similar provision, hut it was eliminated in 1937 by T.D. 4729, 1937-1 Cum.Bull. 284. We think it proper to include the possibility of reverter as an incident of ownership under the 1937 edition of the Regulations.
In Lang v. Commissioner, 1938, 304 U.S. 264, 58 S.Ct. 880, 82 L.Ed. 1331, 118 A.L.R. 319, some of the policies had been taken out before 1918, as was pointed out in defendant’s brief in that case. The court included proceeds of these policies making no reference to the date of their issue.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_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."
UNITED STATES of America, Plaintiff-Appellant, v. Donald J. ANGELINI, Dominic Cortina, Joseph Spadavecchio, Salvatore J. Molose, Nick Camillo, John La Placa and Frank Aureli, Defendants-Appellees.
No. 77-1152.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 16, 1977.
Decided Nov. 7, 1977.
Rehearing Denied Nov. 30, 1977.
Peter F. Vaira, Atty. in Charge, Chicago Strike Force (DOJ), Washington, D. C., Stephen H. Pugh, Jr., Chicago, 111., Gregory Ward, Special Attys., (DOJ), Washington, D. C., Charles P. Kocoras, Acting U. S. Atty., Chicago, 111., Sidney M. Glazer, Paul J. Brysh, U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellant.
Carol R. Thigpen, Edward J. Calihan, Melvyn L. Segal, Raymond J. Smith, John C. Tucker, Gerald M. Werksman, Herbert Barsy, Chicago, 111., for defendants-appel-lees.
Before PELL, BAUER and WOOD, Circuit Judges.
PELL, Circuit Judge.
This case involves Government interceptions of wire communications without achieving strict compliance with the federal statutes governing such interceptions, with the court being called upon to determine whether to apply the severe remedy of suppressing the resulting tapes and derivative evidence. The district court ordered suppression, and the Government appealed, pursuant to 18 U.S.C. § 2518(10)(b).
The pertinent facts are not complicated. During the period between November 1974 and February 1975, the Government obtained three separate wiretap orders as part of its investigation into illegal gambling operations. The adequacy of these orders and the propriety of the procedures used to obtain them are not in issue here, nor is there any question before us about the scope or manner of the actual interceptions. The product of these interceptions, pursuant to 18 U.S.C. § 2518(8)(a), was a substantial quantity of tape recordings of the intercepted telephone calls. Although § 2518(8)(a) calls for such recordings to be sealed by the district judge “immediately” upon the expiration of the authorization order, this was not done here. Instead, the tapes resulting from the three authorization orders were sealed 9, 38, and 26 days after the respective orders expired.
The Government explained the delay in sealing as follows. After the tapes were made, the Federal Bureau of Investigation (FBI) made duplicate tapes, and the duplicate tapes were given to a full-time group of five or six typists for transcription. The originals were retained in secure storage, to which only the FBI special agent in charge had access. Because of the quantity of the tapes, the volume of intercepted calls on each, and the difficulty of transcribing sometimes garbled or inaudible recordings, it took several days to transcribe each tape. When transcripts were typed, they were returned to the special agent in charge with the tape copies. Where the typists were unable to understand the content of certain conversations, an agent attempted to do so with the duplicates, failing which reference to the original tapes was had. Reference to the originals was had between 17 and 25 times. The Government argued to the district court and argues here that it operated in perfect good faith to facilitate use of the tapes as legal evidence. Absent some harm to the defendants, the Government insists, the tapes should not be suppressed.
In an oral opinion, the district court judge stated:
Now, I find as a fact that there was no tampering [with the tapes] whatsoever. I find as a fact that the Federal Bureau of Investigation and the attorneys for the Department of Justice acted in the best of faith and with the best of motives and I further find that none of them attempted to circumvent the law in any way and I further find that they believed that they were not circumventing the law and I think they still believe it, and they may be right; but it is my obligation to interpret and apply the law as I see it.
The district judge declined to enter a finding that there had been no inadvertent alterations of the tapes, reasoning that such alterations might have occurred as the tapes were used, and opining that avoiding the necessity of factual findings on the existence of such alterations was part of the reason for the immediate sealing rule. As the district judge viewed the case, the “satisfactory explanation” referred to in § 2518(8)(a) for the lack of a properly and promptly applied seal requires the Government to show that a sealing delay was “really necessary.” Because the amount of the total tape transcripts which retention of the original tapes could have clarified was an “infinitesimal percentage” not likely to have much impact on the Government’s need to prove at trial an ongoing gambling operation, this standard was not met. The district court judge determined that the lack of a satisfactory explanation, thus defined, required suppression without more.
In United States v. Lawson, supra, 545 F.2d at 564, this Court determined that the general suppression provision of Title III, 18 U.S.C. § 2518(10)(a), and particularly subsection (i) therein, governs post-interception compliance problems such as this one. Lawson states that the post-interception procedural requirements aim to “preserve the integrity of the intercepted conversations and to prevent any tampering or editing of the tapes or other unlawful use.” Id. They are sufficiently important to the Congressional purposes in enacting Title III that suppression is justified in appropriate cases. Cases appropriate for suppression are identified by considering “whether the purpose which the particular procedure was designed to accomplish has been satisfied in spite of the error;” “whether the statutory requirement was deliberately ignored; and, if so, whether there was any tactical advantage to be gained thereby.” Id.
The Lawson approach, which sensibly reads § 2518(8)(a) in conjunction with § 2518(10)(a), necessarily contemplates a two-step analysis in considering delayed sealing problems. If sealing was not immediately accomplished, it must be decided whether a satisfactory explanation has been offered. If not, the inquiry described above is undertaken. Although we believe this to be a close case, we find that the district court should not have suppressed the evidence in this case, both because the Government’s explanation is, in the circumstances of this case, satisfactory, and because the purposes intended by Congress were fulfilled despite the delay.
In considering the adequacy of the Government’s explanation for the sealing delay, we point out first that this is not a case even remotely akin to United States v. Gigante, 538 F.2d 502 (2d Cir. 1976), where sealings were delayed for periods from over eight months to nearly thirteen months and the Government offered absolutely no explanation. Nor does this case resemble Lawson, supra, where the only explanation offered for a 57-day delay was the travel schedule of a single agent. Obviously, another agent could have taken charge of the sealing obligation there. Here, on the other hand, the Government was pursuing an unquestionably legitimate and important goal (transcription to facilitate the use of the tapes as evidence) in the best of faith, without any intention to circumvent the statute. Moreover, for all that appears, this task was undertaken with acceptable diligence, using a team of typists working full time. The original tapes were kept secure, no one tampered with them, and they were used for clarification only sparingly, as a last resort. No argument is made that the defendants were prejudiced in any way by the delay itself. See United States v. Diadone, 558 F.2d 775, 780 (5th Cir. 1977).
On the surface, at least, it would appear that all of this would amount to a satisfactory explanation. The legislative history of Title III provides virtually no guidance as to what constitutes a “satisfactory explanation,” and, even now, there is a scantling of judicial opinions dealing squarely with the question. Without purporting to adopt a definition that will be appropriate for all cases, because each case must be decided on its own facts, we think it fair to say generally that a satisfactory explanation is one in which the Government shows that it acted with dispatch and all reasonable diligence to meet the sealing requirement, respectful of the letter and spirit of Title III and mindful of the constructions it has been given in the courts.
Examination of two such constructions indicates that the explanation given here is satisfactory. In United States v. Sklaroff, 506 F.2d 837 (5th Cir. 1975), cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105, the court approved a two-week delay explained only by accounting for the security of the tapes for seven days and asserting that seven more days were used in preparing search warrants, where there was no showing of prejudice or tape alteration. In United States v. Caruso, 415 F.Supp. 847, 850-51 (S.D.N.Y.1976), aff’d without opinion, 553 F.2d 94 (2d Cir. 1977), the court found a satisfactory explanation for a 24-day delay in efforts to duplicate the tapes and make them ready for sealing and in discussions in the prosecutor’s office about the possibility of continuing the interception. A different 42-day delay was approved in Caruso on the basis of confusion resulting from information that a wiretap subject had received a tipoff, the hospitalization of the prosecutor in charge, and the time it took the newly assigned prosecutor to familiarize himself with the ease. We do not cite either Sklaroff or Caruso as textbook cases of satisfactory explanations, for each case, as we have said, must be judged in the context of its own facts. But we do think that the explanation given here is at least as appealing as the ones approved in those cases.
The difficulty, from the Government’s point of view, and the reason we consider the present case as a close one, is that there were available alternatives which might have allowed immediate sealing and yet preserved a first quality tape for clarifying the inaudible portions. The Government might have made duplicate original tapes, or could have used filtering equipment to produce a very good copy. In the future, the Government, it appears to us, would be well advised either to use such a method or forego the benefits of clarification from the original if such a course would require late sealing. Indeed, if Lawson, supra at 564, in which this court chastised the Government for its “unenthusiastic approach for the ‘technical’ requirements” of Title III, had been decided prior to the incidents in issue here, we might well take a different view of this ease. But in view of the murkiness that has surrounded the phrase “satisfactory explanation,” the Government agents’ testimony in this case that the equipment mentioned above was not readily accessible to them, the diligence they used with that which they had, and the district court’s finding that the agents acted in perfect good faith, we think the Government’s explanation is, in the circumstances of the case, satisfactory.
We also believe the Congressional purposes underlying the sealing requirement were met here despite the delay, for there is no substantial question raised about the integrity of the tapes. The district court’s unchallenged finding was that there was “no tampering whatsoever.” That conclusion goes a long way towards satisfying the Lawson inquiry referred to above. As we have noted, Lawson approved a refusal to suppress, even in the face of an inadequate explanation for a sealing delay longer than those before us here, because the integrity of the tapes was not challenged. See also United States v. Diadone, supra; United States v. Sklaroff, supra; United States v. Falcone, 505 F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975).
To be sure, the district court declined to find that there had been no accidental alterations in the original tapes, being of the view that the point of the sealing rule was to avoid the need to make such findings. Nor, consistently, did the district court find to the contrary. The Lawson inquiry into the integrity of the late-sealed tapes, however, requires just such analysis. Defendants strenuously insist that the tapes were, after all, used, and they should not have to prove alterations. We may assume without deciding that it is not the defendants’ burden to demonstrate affirmatively the existence of material alterations, but see United States v. Diadone, supra at 780; United States v. Sklaroff, supra at 840 (both cases referring to defendants’ failure to show that tape integrity was violated), for whichever side has the burden of persuasion, the Government’s proof persuades in this case.
Because of the unchallenged finding that no deliberate tampering whatsoever occurred, there is no issue here of attempting to discover cleverly made alterations. Defendants’ tape recording expert suggested two possibilities of accidental alterations: accidental erasures, and accidental injury to the tapes by stretching, the later being most likely to occur when a tape slips on its reels while the tape recorder is being switched back and forth between fast forward and rewind. However, never having used the type of machine used here by the Government, the expert was in no position to say whether either of these things could have happened here. The Government’s expert, on the other hand, was quite familiar with the particular machine, and testified that it was equipped with anti-stretch devices which gently slowed to a stop the tape’s progress in either a forward or backward direction before activating movement in the opposite direction. This eliminated the possibility of stretching. The expert had tried to make the machine stretch a tape without success. Moreover, even the defense witness agreed that a stretching problem would be very easy to detect. With regard to accidental erasure, we note that in many tape machines, activating the recording (and thus the erasing) mode requires the simultaneous manipulation of two or more separate controls, and there was absolutely no evidence before the district court that accidental erasure was even possible on the machine and in the use to which the tapes were put. We also point out that undisputed evidence from the Government’s expert was that the activation of the erase mode on any recorder can be detected electronically. Also, of course, the very nature of an erasure is (absent tampering, as here) that a blank spot will remain quite apparent on the tape as it is played, which would, in conjunction with defense counsel’s evaluation of the pertinence of a tape segment to the defense, eliminate the need to analyze huge amounts of tape.
What we are saying, here, in part, is that there is ample authority and mandate in the law for the district judges to refuse to admit particular tapes or portions thereof where there appears a reasonable possibility that accidental alteration may have occurred that in any way prejudices the defense. The wholly speculative possibility, however, that readily detectable alterations might somehow have crept into these tapes does not pose such a question about the tapes’ integrity as to justify suppressing the lot of them. We find significant in this respect the undisputed fact that the original tapes were used very little by the Government in the process of making the transcripts.
For the reasons set out herein, the district court’s suppression order is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
. The provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, are summarized in United States v. Lawson, 545 F.2d 557 (7th Cir. 1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976), and there is no reason to repeat that task here. Statutory provisions of particular relevance to this case will, of course, be discussed infra.
. Section 2518(8)(a) provides, in pertinent part:
The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents . shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. . . . The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication or evidence derived therefrom under subsection (3) of section 2517.
. We find it unnecessary to decide whether the orders expired at the terminal dates indicated on their faces or on the dates on which interception under the orders was actually terminated (by which count the delays in sealing would be 14, 43, and 44 days respectively), for the legal issues presented are the same either way.
. See, e. g., United States v. Onori, 535 F.2d 938, 947 (5th Cir. 1976).
. Lawson was not released as a published prec-edential opinion until December 3, 1976. The Government, however, received a copy of this court’s unpublished order (see Circuit Rule 35) issued on August 20, 1975, as a party to the litigation.
. We find unpersuasive the district court’s reasoning that the small number of references made to the original tapes undercut the adequacy of the explanation, for the record gives us no reason to assume that the relatively light use of the tapes could have been predicted in advance.
. We are not unmindful that the Second Circuit in United States v. Gigante, supra, has read the pertinent statutes differently than we did in Lawson. That court has apparently chosen the position that the absence of an immediately applied seal or a satisfactory explanation therefor requires suppression without inquiry into the satisfaction of the Congressional purposes. We see no reason, nonetheless, to question the commitment this court made in Lawson to determining a violation on the basis of the satisfactory nature of explanation for delay and determining whether suppression is the appropriate remedy for the violation under the standards of 18 U.S.C. § 2518(10)(a). As the Government argued before us, the Gigante rule inexplicably elevates the immediate sealing requirement to a more protected status than any of the other procedural requirements enacted in Title III.
. Had it done so, of course, we would have a very different case.
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_summary
|
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 the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
OSWALD v. UNITED STATES.
No. 8469.
Circuit Court of Appeals, Ninth Circuit
March 28, 1938.
J. Garner Anthony and Dudley C. Lewis, both of Honolulu, T. H. (Robertson, Castle & Anthony, of Honolulu, T. H., of counsel), for appellant.
Ingram M. Stainback, U. S. Atty., and J. Frank McLaughlin, Asst. U. S. Atty., both of Honolulu, T. H., and H. H. McPike, U. S. Atty., and A. J. Zirpoli, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
Before GARRECHT, MATHEWS, and HANEY, Circuit Judges.
GARRECHT, Circuit Judge.
This is an appeal from a judgment of dismissal entered in an action in which Olaf Oswald was plaintiff and the United States of America, defendant. The plaintiff-appellant, Oswald, filed a complaint in which he alleged that he was the duly appointed official court reporter (stenographic) of the District Court of the United States for the Territory of Hawaii,, taking oath as such on November 1, 1931, and being approved by telegram of an Assistant Attorney General of the United States and confirmed by letter to the judge of said court dated October 21, 1931, “specifying the appointment of Plaintiff in grade CAF-7.” He further alleged that the nature of his claim was for the recovery of $1,-368 with interest, upon an express parol contract for transcribing testimony in connection with appeals taken by the United States from decisions of the said court in certain civil cases in which the United States was a party, to the amount of 6,940 folios (of 100 words) at 20 cents per folio; that he had reported the proceedings in these cases and received per diem expenses from the defendant for each day in court, the United States being exempted by rule of court from payment of such per diem; that the United States began prosecution of an appeal in each case and an Assistant Attorney General of the United States requested the appellant to prepare a transcript of proceedings in each case; “that immediately thereupon this plaintiff directed the attention of the said assistant attorney general to the practice and rule of this court with respect to payment to the court reporter for transcripts; that thereupon the said assistant attorney general assured the plaintiff that he, the said plaintiff, would be paid for such transcripts at the rate set in said rule of court through the United States Marshal for the district of Hawaii upon voucher in the usual form duly certified by the United States Attorney and approved by the proper United States department in Washington, D. C., and instructed this plaintiff to proceed with all possible speed to complete the said transcripts within the remaining sixty days of time allotted by law for perfecting appeals;” that on the same day a “Request for Order for Transcript” was presented to the plaintiff by the United States Attorney in each case, which was approved by a judge of the District. Court of the United States for the Territory of Hawaii “upon this Plaintiff’s oral representation to the said Judge, and only by reason of such representation, that an understanding as to compensation, aá hereinabove set forth, had been arrived at with the said assistant attorney general”; that the transcripts were completed and delivered October 8, 1934; that the amount due plaintiff under said agreement with the Assistant Attorney General was the total sum of $1,368; that on the same day the plaintiff submitted a voucher for said sum to the United States Attorney for the Territory of Hawaii who attested completion and delivery of the transcripts and to the United States Marshal for said District and Territory who certified and attested that the sum had not been paid to the plaintiff or to any one for him; that thereafter this voucher was forwarded to the Department of Justice, Washington, D. C., for approval and was disallowed; that following this, claim was made for said sum to the General Accounting Office, Claims Division, Washington, D. C., and disallowed by the Comptroller General of the United States. Thereafter follow allegations that the plaintiff is not an “officer” of the United States; that the claim is not for services within the original contract of employment; that plaintiff could not legally be required to perform such services without other compensation than the salary provided by law; that the obligation sued on was for service outside and beyond the scope of plaintiff’s duty; and that the action was brought to recover “for usual and expected services of said reporter for which his payment therefor at the rate of twenty cents per folio is comprehended within his expected and anticipated compensation for such employment, as. established by said rule of court.”
The United States demurred upon the ground that the petition did not state facts sufficient to constitute a cause of action, and “That it affirmatively appears from the face of said Petition that this Court is without jurisdiction to entertain this suit since this is an action to recover fees, salary and compensation for official services of an officer of the United States.”
Thereafter, a stipulation was entered into “that upon the defendant’s demurrer to the plaintiff’s declaration the Court may consider as a fact well pleaded, to the same extent as if the same were specifically set forth in the plaintiff’s declaration, that the plaintiff as official court reporter of the United States District Court for the Territory of Hawaii is and has been, sitlce the date of his appointment as such official court reporter, in receipt of the salary specified under, said appointment, -to-wit, $2,600.00 per annum, in Grade Caf-7, payable from the appropriation ‘Miscellaneous Expenses, U. S. Courts.’ ”
The District Judge filed an opinion in the case and entered judgment dismissing the action, from which plaintiff appeals.
The position of reporter in the District Court of the United States for the Territory of Hawaii is provided by statute, 31 Stat. 158, as amended, 48 U.S.C.A. § 644, and the salary fixed, originally at $1,200 per annum, but subsequently changed, from time to time, until the present when the. classification of the position, calls for a salary of $2,600 per annum.
Rule 129 of the said District Court sets out the duties of the reporter, and reads as follows:
“The official court reporter shall report and keep a record of all actions and proceedings tried and heard Before this court. The compensation of the official court reporter shall, in addition to his salary provided by law, be $10 per day and $5 per half day for reporting in civil cases, and twenty cents.per folio for transcribing his notes, to be paid by the party requiring the transcript. The per diem expenses in such cases shall be paid by the parties, in advance, excepting the United States, and shall be taxable as costs in the case. When the court shall require a transcript of the reporter’s notes in civil cases, the charge therefor shall be paid, by the parties, excepting the United States, and shall be taxable as costs in the case. When the court shall require a transcript of the reporter’s notes in any criminal action or proceeding, such transcript shall be furnished free of charge.”
The appellant divides his argument into two parts: (1) The District Court had jurisdiction of this cause under the Tucker Act, as amended, 28 U.S.C.A. § 41 (20); and (2) plaintiff’s cause of action is not barred by reason of being a claim for extra allowance or compensation not authorized by law, forbidden by the provisions of 5 U.S.C.A. § 70.
The Tucker Act, as amended, 28 U.S.C. A. § 41 (20), upon which the appellant bases his claim that the court below had jurisdiction, reads as 'follows:
“The district courts shall have original jurisdiction as follows: * * *
“Twentieth. Concurrent with the Court of Claims, of all claims not exceeding $10,-000 founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of all set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court. * * * Nothing in this paragraph shall be construed * * * as giving to the district courts jurisdiction of cases brought to recover fees, salary, or compensation for official services of officers of the United States or brought for such purpose by persons claiming as such officers or as assignees or legal representatives thereof. * * * No suit against the Government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made. * * * All suits brought and tried under the provisions of this paragraph shall be tried by the court without a jury.”
Our initial inquiry must be directed to ascertain whether the court had jurisdiction of the cause under the Tucker Act. As appears from the above quotation, jurisdiction would be lacking in the District Court if the plaintiff was (1) an officer of the United States, (2) seeking to recover fees, salary, or compensation for official services.
First. Was the plaintiff an officer of the United States ? “The President * * * shall nominate, and by and with the Advice and Consent of the Senate, shall appoint * * * all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Const, art. 2, § 2, cl. 2. The Congress created the position of reporter in the District Court of the United States for the Territory of Hawaii and originally fixed the salary and granted that court the authority to make the appointment. 48 U.S.C.A. § 644. The appellant was appointed under the authority of that statute. “If an official has been appointed in any of the modes indicated in the paragraph of the federal Constitution above quoted, he is an officer of the United States.” Scully v. United States, C.C.Nev., 193 F. 185, 187. See, also, Burnap v. U. S., 252 U.S. 512, 516, 40 S.Ct. 374, 376, 64 L.Ed. 692; United States v. Mouat, 124 U.S. 303, 307, 8 S.Ct. 505, 31 L.Ed. 463; United States v. Germaine, 99 U.S. 508, 25 L.Ed. 482; United States v. Hartwell, 73 U.S. 385, 393, 6 Wall. 385, 393, 18 L.Ed. 830; United States v. McCrory, 5 Cir., 91 F. 295, 296. We conclude, therefore, that the appellant was, or is, an “officer” of the United States.
Second. Is he seeking to recover fees, salary, or compensation for official ■services ? The duties of the official reporter ■are set forth in rule 129 of the lower court. The official reporter is required to report and keep a record of all actions and proceedings and to.furnish transcripts of testimony where required, either by the parties ■or by the court. If he were not required to furnish transcripts of testimony, there would be no purpose in having a reporter; the notes must be read or transcribed at some time to be of any value at all. The purpose in having a stenographer report proceedings in the trial of a case is to make available a transcript of the testimony whenever required. It follows, as a matter of course, that the furnishing of transcripts of testimony is an ordinary duty of an official stenographic reporter and such services rendered by him are “official services.”
The answer to each question being in the affirmative, the appellant failed to bring • his action within the provisions of the Tucker Act and, therefore, the lower court was without jurisdiction to entertain the case. Citation is unnecessary to substantiate the premise that the United States may not be sued without its consent and, the consent of the Tucker Act being lacking, the suit must fail.
Judgment affirmed.
42 Stat. 108, 119, 120, 1488; 43 Stat. 704, 709, 763, 764; 45 Stat. 162, 193, 776, 785 ; 5 U.S.C.A. § 673.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_counsel1
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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
Ivan Ned FOSTER, Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Appellee.
No. 85-1252.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 10, 1985.
Decided Jan. 7, 1986.
Philip A. Lehman (North State Legal Services, Graham, N.C. on brief) for appellant.
Cheryl Nikonovich-Kahn, Office of Gen. Counsel, Dept. of Health and Human Services, Washington, D.C. (Kenneth W. McAl-lister, U.S. Atty., Benjamin H. White, Jr., Asst. U.S. Atty., Greensboro, N.C. on brief), for appellee.
Before PHILLIPS and ERVIN, Circuit Judges, and McMILLAN, United States District Judge for the Western District of North Carolina, sitting by designation.
ERVIN, Circuit Judge:
Ivan Ned Foster appeals from a judgment of the district court affirming the Secretary’s decision to deny Foster’s application for Social Security disability insurance benefits. Finding that the Secretary improperly evaluated Foster’s pain and erroneously disregarded the treating physician’s testimony, we conclude that the Secretary’s decision is not supported by substantial evidence. Accordingly, we reverse the district court’s judgment.
I.
Foster filed an application for disability benefits on May 24, 1982. His claim was denied initially and upon reconsideration by the Social Security Administration. A hearing was subsequently held on March 14, 1983, before an Administrative Law Judge (ALJ).
At the hearing, Foster testified that he was born on August 26, 1937, had completed seven years of school, and could not read, write, or do simple arithmetic. His past work experience consisted of fifteen years of employment as a knitter arid knitting machine fixer in a hosiery mill. This work involved a significant amount of lifting, climbing, bending, standing, and walking.
In 1964, Foster fell on some ice and broke his back. He was unable to work for about eleven months but recovered and returned to employment. In September, 1978, he fell down seven concrete steps and sustained another back injury. The injury has resulted in severe and continuing pain. Foster testified that he has not improved since the 1978 accident. He tried to return to work several times but was unable to work for more than three or four hours.
Foster described the pain as constant and like a “jumping toothache” from his lower back to his legs. The pain eases somewhat only when he takes prescribed pain medication and lies down. Most of his day is spent sitting, walking, and lying down for short intervals, because he is unable to remain in one position for long due to pain. He wears a corset-type back brace at all times, even when sleeping, and cannot walk without a cane.
Foster is unable to perform even the most basic household chores. He cannot dust, sweep, mop, do laundry, go shopping, or do yard work. He requires his wife’s assistance to put on his pants and shoes because he is unable to bend down.
Mrs. Foster corroborated her husband’s testimony. She testified that his condition was getting worse and that some mornings he was virtually unable to get out of bed.
The medical evidence in the record consists of reports from Foster’s treating and examining physicians. In a letter dated February 8, 1982, Dr. James W. Hayes, an orthopedic surgeon and Foster’s treating physician, stated that Foster’s diagnosis was degenerative disc disease at L4 with superimposed strained ligaments of the lumbar spine. According to Dr. Hayes, the restrictions and limitations placed upon Foster were related to his low back pain and pain in the right lower extremity which precluded his lifting over five to ten pounds in weight and any significant bending of the back. In a subsequent letter dated May 7,1982, Dr. Hayes expressed the opinion that Foster was totally disabled and could not do any type of work due to his low back pain and pain in the right lower extremity. On October 7, 1982, Dr. Hayes completed a Physical Capacities Evaluation form in which he listed the following findings regarding Foster: able to sit one to two hours; able to stand and walk less than one hour; unable to push and pull; unable to bend, squat, crawl, or climb; spinal deformity present; motion in the lumbar spine Vi normal; tenderness in the lumbar spine; straight leg raising to 45 degrees bilaterally caused increase in low back pain; and x-ray of the lumbar spine showed degenerative disc L4.
The record also reflects that Foster underwent evaluation on February 18, 1983, at the North Carolina Memorial Hospital Orthopedic Clinic. At the time of the examination Foster was wearing a back brace and had difficulty ambulating. He used a cane in his right hand and had trouble forward bending. There was diffuse tenderness in the low back which was not reproducible in terms of point of maximum tenderness. In addition, Foster exhibited tenderness which extended down onto and included the sacrum and distal sacrum. X-rays of the claimant’s lumbosacral spine showed mild degenerative changes and disc narrowing at L3-4 and L4-5 without sub-luxation. Based upon the results of the physical examination and history, the medical assessment was mechanical low back pain. The examining physicians noted that actual evaluation of Foster with regard to disability would be more appropriate for the doctor who had been treating the patient since 1978.
Foster returned to the North Carolina Memorial Hospital Orthopedic Clinic on May 17, 1983, for further evaluation. The doctors concluded that he had mechanical low back pain with evidence of degenerative disc disease. Examination showed diffuse tenderness over the L8-4, L4-5, and L5-S1 spinous processes and interspinous ligaments. He had some facet tenderness and L4-5 in the 5-1 areas on the right and right sciatic notch tenderness. He had increased low back pain with forward bending which was limited and increased lumbar pain with extension and lateral bending which was limited to 30 degrees. Foster could toe walk and heel walk but did so in a jerking fashion swaying from right to left.
Based on the above evidence, the AU found that Foster was functionally illiterate, had not engaged in substantial gainful activity since 1978, suffered from a severe medically determinable impairment (degenerative disc disease), could not perform his past work, but could perform the full range of light work as defined in 20 C.F.R. § 404.1567(b) (1983). Considering his residual functional capacity, age, education, and work experience, the AU applied the medical vocational guidelines and concluded that Foster was not disabled. 20 C.F.R. Ch. Ill, App. 2, Rule 202.16 (1983). The Appeals Council denied Foster’s request for review and the AU’s decision became the Secretary’s final determination.
Foster commenced an action for judicial review in the United States District Court for the Middle District of North Carolina. He filed a motion for summary judgment and the Secretary filed a cross motion for judgment on the pleadings. On November 16, 1984, the United States Magistrate issued findings and a recommendation that the administrative decision of the Secretary be upheld and that the case be dismissed. Foster filed objections to the Magistrate’s findings, and on January 11, 1985, United States District Judge Frank W. Bullock entered an order affirming the Magistrate’s findings and dismissing Foster’s action. This appeal followed.
II.
The Secretary, having found Foster unable to perform his past work, has the burden of proving claimant’s capacity to perform a wide range of light work. See Hall v. Harris, 658 F.2d 260, 264 (4th Cir.1981). Foster asserts on appeal that the Secretary has failed to meet her burden. He reasons that upon a proper evaluation of his pain and consideration of Dr. Hayes’ testimony, the record lacks substantial evidence to support the Secretary’s finding. We agree.
The first issue we must address is the evaluation of Foster’s pain. This court has held that pain itself can be disabling, and it is incumbent on the AU to evaluate the effect of pain on a claimant’s ability to function. See Myers v. Califano, 611 F.2d 980 (4th Cir.1980).
The standard for evaluating disabling pain was recently adopted by Congress in the Social Security Disability Benefits Reform Act of 1984. The standard reads:
An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a con-elusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability.
42 U.S.C.A. § 423(d)(5)(A) (West Supp.1985).
The record shows that neither the ALJ nor the district court properly applied the standard in evaluating Foster’s pain. The AU summarily dismissed the evidence of pain as being of insufficient magnitude to preclude the performance of light work activity. Apparently, the ALJ found that the medical evidence did not prove the intensity of the pain Foster’s testimony asserted. The district court affirmed the ALJ’s decision, reasoning that the treating physician failed to make a specific finding that Foster’s physical condition would result in the degree of pain alleged. These holdings, requiring that there be a direct tie between objective medical findings and a specific level of pain, go beyond the pain standard.
The Disability Reform Act requires medical evidence of a condition that could reasonably produce pain, not objective evidence of the pain itself or its degree. Indeed, two other Circuits have recently construed the pain standard as not requiring direct medical evidence of the pain or its intensity. Polaski v. Heckler, 751 F.2d 943 (8th Cir.1984); Green v. Schweiker, 749 F.2d 1066 (3rd Cir.1984). The Green court accurately stated:
The new statute does not require objective medical proof of each and every element of pain; if such were the requirement, there would be no need for a separate section on evaluation of pain. The Disability Reform Act and its legislative history, as well as the Secretary’s own regulations, recognize that pain must be considered, can be disabling in itself, and is often not subject to strict objective medical procf. All that the statute requires is that ‘there must be medical signs and findings, established by medically acceptable techniques, which could reasonably be expected to produce the pain or other symptoms alleged.’ Pub.L. 98-460, § 3(a)(1). Thus while there must be objective medical evidence of some condition that could reasonably produce pain, there need not be objective evidence of the pain itself.
Green, 749 F.2d at 1070-71.
The record in the instant ease shows that Foster suffers from an impairment that could result in the pain alleged. Foster testified that he cannot stand or sit more than thirty to forty-five minutes and cannot walk more than a block and a half because of the pain. Foster wears a back brace at all times, even when sleeping, and cannot walk without a cane. His persistent pain is eased somewhat only when he takes prescribed medication and lies down.
The medical reports of all examining physicians establish that he has an impairment (degenerative disc disease). The reports document the existence of pain. Foster’s treating physician, Dr. Hayes, declared him totally disabled due to his impairment and associated pain. The medical findings included superimposed strained ligaments of the lumbar spine, spinal deformity, motion in the lumbar spine only Vs normal, and tenderness. The report of the North Carolina Memorial Hospital Orthopedic Clinic noted an impression of mechanical low back pain with evidence of degenerative disc disease and tenderness. The doctors’ findings were based on established medical techniques, including x-rays, motion of Foster’s spine, and leg motions.
In sum, Foster’s testimony of the extent and effect of his pain, supported by the objective medical findings, meets the requirements of the pain standard in the Disability Reform Act. Indeed, we held recently that evidence similar to that in the instant case met the burden of production imposed by the Act. Hammond v. Heckler, 765 F.2d 424 (4th Cir.1985).
Finding that the medical evidence supports the pain alleged, we turn to the issue of the effect of that pain on Foster’s residual functional capacity. The record clearly lacks the substantial evidence required to support the AU’s and district court’s finding that Foster can perform a wide range of light work. Moreover, substantial evidence to the contrary exists.
Light work requires lifting of objects that weigh up to twenty pounds. The work may include a good deal of walking, standing or sitting with some pushing and pulling of leg or arm controls. 20 C.F.R. § 404.1567(b) (1983). The medical testimony of Dr. Hayes establishes that Foster’s impairment and pain preclude him from performing the activities associated with light work. Dr. Hayes found that Foster can sit, stand, or walk for only short periods of time (one to two hours). The doctor determined that Foster cannot push, pull, bend, squat, crawl, or climb. Foster is also unable to lift objects weighing more than five to ten pounds.
The AU improperly disregarded the doctor’s findings. Dr. Hayes’ testimony as the treating physician is “entitled to great weight for it reflects an expert judgment based on a continuing observation of the patient’s condition over a prolonged period of time.” Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir.1983). A treating physician’s testimony is ignored only if there is persuasive contradictory evidence. Id. The instant record contains no contradiction to Dr. Hayes’ findings. Indeed, the other examining physicians’ testimony corroborated Dr. Hayes’ conclusions that Foster suffers from degenerative disc disease, pain, and tenderness. Moreover, these doctors stated that the treating physician was better qualified to evaluate Foster’s disability status.
Concluding that Foster is unable to do light work, we will consider his disability status under the next lower classification, sedentary work. Applying the medical vocational guidelines to Foster’s residual functional capacity to do sedentary work, age, education and work experience, he is disabled. 20 C.F.R. Ch. Ill, App. 2, Rule 201.17, (1983). Accordingly, we reverse the district court’s judgment and remand the case with instructions that the Secretary enter a finding of disabled.
REVERSED AND REMANDED.
. Foster testified that he cannot stand or sit more than thirty to forty-five minutes and cannot walk more than one and a half blocks. At night, he cannot sleep or stay in bed for more than two hours at a time.
. At issue in this appeal is Foster’s medical status subsequent to January 29, 1982. The medical evidence prior to this date was considered under three applications Foster had made previous to the instant one on appeal. Those three applications were denied and Foster was precluded by the statute of limitations from pursuing his judicial remedies. Thus, Foster’s claims based on his medical condition between the 1978 accident and January 29, 1982, are not before this court. Accordingly, only medical evidence subsequent to January 29, 1982, will be considered.
. Dr. Hayes is the only doctor who has continuously treated Foster since 1978.
. The section states:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities____
20 C.F.R. 404.1567(b) (1983).
. The ALJ's decision was made prior to the enactment of the Disability Reform Act. The congressional standard, however, was a mere codification of the regulations and policies followed by the Social Security Administration. S.Rep. No. 466, 98 Cong., 2d Sess. 24 (1984). Thus, the AU was aware of the appropriate pain standard to be applied in the instant case, notwithstanding the congressional adoption thereof one year later.
. The AU’s complete disregard of Foster's subjective testimony of pain because of purportedly weak objective medical findings is alone sufficient to require reversal. See Thome v. Wein-berger, 530 F.2d 580, 583 (4th Cir.1976).
. We read the Disability Reform Act standard for evaluating pain to be consistent with prior case law of this Circuit. See, e.g., Shively v. Heckler, 739 F.2d 987 (4th Cir.1984) (no disabling pain when the subjective testimony is the sole medical evidence of pain); Myers, 611 F.2d at 983 (subjective testimony of the intensity of pain coupled with medical findings of a physical impairment causing pain proved disability); Thorne, 530 F.2d at 583 (medical findings supported by the subjective evidence demonstrated the existence of disability).
. The impairment and pain are documented in all the reports dating back to 1978.
. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a) (1983).
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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sc_issue_1
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05
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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.
WYMAN, COMMISSIONER OF NEW YORK DEPARTMENT OF SOCIAL SERVICES, et al. v. JAMES
No. 69.
Argued October 20, 1970 —
Decided January 12, 1971
BlackmüN, J., delivered the opinion of the’ Court, in which Burger, C. J., and Black, HarlaN, and Stewart, JJ., and White, J. (except for Part IY) joined. Douglas, J., filed a dissenting opinion, post, p. 326. Marshall, J., filed a dissenting opinion, in which BrenNan, J., joined, post, p. 338.
Brenda Soloff, Assistant Attorney General of New York, argued the cause for appellant Wyman. With her on the brief were Louis J. LefUowitz, Attorney'General, and Samuel A: Hirshowitz, First Assistant Attorney General, for appellant Wyman, and J. Lee Rankin for appellant Goldberg, Commissioner of Social Services of the City of New York.
Jonathan Weiss argued the cause for appellee. With him . on the brief was David Gilman..
Briefs of amici curiae urging affirmance were filed by Stephen F. Gordon and Ernest Fleischman for the Social Service Employees Union Local 371, AFSCME, AFL-CIO, and by Lois P. Sheinfeld for the Legal Aid Society of San Mateo County.
Mr. Justice Blackmun
delivered the opinion of the Court.
This appeal presents the. issue whether a beneficiary of the program for Aid to Families with Dependent Children (AFDC) may refuse a home visit by the caseworker without risking the termination, of benefits.
The New York State and City social services commissioners appeal from a judgment and decree of a divided three-judge District Court holding invalid and unconstitutional in application § 134 of the New York Social Services Law, § 175 of the New York Policies Governing the Administration of Public Assistance, and §§ 351.10 and 351.21 of Title 18 of the New York Code of Rules and Regulations, and granting injunctive relief. James v. Goldberg, 303 F. Supp. 935 (SDNY 1969). This Court noted probable jurisdiction but, by a divided vote, denied a requested stay. 397 U. S. 904.
The District Court majority held that a mother receiving AFDC relief may refuse, without forfeiting her. right to that relief, the periodic home visit which the cited New York statutes and regulations 'prescribe as a condition for the continuance of assistance under the program. The beneficiary’s thesis, and that of the District Court majority, is that home visitation is a search and, when not consented to or when not supported by a warrant based on probable cause, violates the beneficiary’s Fourth and Fourteenth Amendment rights.
Judge McLean, in dissent, thought it unrealistic to regard the home visit as a search; felt that the requirement of a search warrant to issue only upon a showing of probable cause would make the AFDC program “in effect another criminal statute” and would “introduce a hostile arm’s length element into the relationship’-’ between worker and mother, “a relationship which can be effective only when it is based upon mutual confidence and trust”; and concluded that the majority’s holding struck “a damaging blow” to an important social welfare program. 303 F. Supp., at 946.
I
The case comes to us on the pleadings and supporting affidavits and without the benefit of testimony which an extended hearing would have provided. The pertinent facts, however, are not in dispute.
Plaintiff Barbara James is the mother of a son, Maurice, who was born in May 1967. They reside in New York City. Mrs. James first applied for AFDC assistance shortly before Maurice’s birth. A caseworker made a visit to her apartment at that time without objection. The assistance was authorized.
Two years later, on May 8, 1969, a caseworker wrote Mrs. James that she would visit her home on May 14. Upon receipt of this advice, Mrs. James telephoned the worker that, although she was willing to supply information “reasonable and relevant” to her need for public assistance, any discussion was not to take place at her home. The -worker told Mrs. James that she was required by law to visit in her home and that refusal to permit the visit would result in the termination of assistance. Permission was still denied.
On May 13 the City Department of Social Services sent Mrs. James a notice of intent to discontinue assistance because of the visitation refusal. The notice advised the beneficiary of her right to a hearing before a review officer. The hearing was requested and was held on-May 27. Mrs. James appeared with an attorney at that hearing. They continued, to refuse permission for a worker to visit the James home, but again expressed willingness to cooperate and to permit visits elsewhere. The review officer ruled that the refusal was a proper ground for the termination of assistance. His written decision stated:
“The home visit which Mrs. James refuses to permit is for the purpose of determining if there are any changes in her situation that might affect her . eligibility to continue to receive Public Assistance, or that might affect the amount of such assistance, and to see if there are any social services which the Department of Social Services can provide to the family.”
A notice of termination issued on Juné 2.
Thereupon, without seeking a hearing at the state level, Mrs. James, individually and on behalf of Maurice, and purporting to act on behalf of all other persons similarly situated, instituted the present civil rights suit under 42 U. S. C. § 1983. She alleged the denial of rights guaranteed to her under the First, Third, Fourth, Fifth, Sixth, Ninth, Tenth, and Fourteenth Amendments, and under Subchapters IV and XVI of the Social Security Act and regulations issued thereunder. She further alleged that she and her son have no income, resources, or support other than the benefits received under the AFDC program. She asked for declaratory and injunctive relief. A temporary restraining order was issued on June 13, James v. Goldberg, 302 F. Supp. 478 (SDNY 1969), and the three-judge District Court was convened.
II
The federal aspects of the AFDC program deserve mention. They are provided for in Subchapter IV, Part A, of the Social Security Act of 1935, 49 Stat. 627, as amended, 42 U. S. C. §§ 601-610 (1964 ed. and Supp. V). Section 401 of. the Act, 42 U. S. C. § 601 (1964 ed., Supp. V), specifies its purpose, namely, “encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services ... to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life . . . The same section authorizes the federal appropriation for payments to States that qualify. Section 402, 42 U. S. C. § 602 (1964 ed., Supp. V), provides that a state plan, among other things, must “provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for aid to families with dependent children is denied or is not acted upon with reasonable promptness”; must “provide that the State agency will make such reports ... as the Secretary [of Health, Education, and Welfare] may from time to time require”; must “provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid”; and must “provide that where the State agency has reason to believe’ that the home in which a relative and child receiving aid reside is unsuitable for' the child because of the neglect, abuse, or exploitation of such child it shall bring such condition to the attention of the appropriate court or law enforcement agencies in the State . . . Section 405, 42 U. S. C. § 605, provides that..
“Whenever the State agency has reason to believe that any páyments of aid . . . made with respect to a child are not being or may not be used in the best interests of the child, the State agency may provide for such counseling and guidance services with respect to the use of such payments and the management of other funds by the relative ... in order to assure use of such payments in the best interests, of such child, and may provide for advising such relative that continued failure to so use such payments will result in substitution therefor of protective payments ... or in seeking the appointment of a guardian ... or in. the imposition of criminal or civil penalties . . .. .”
III
When a case involves a home and some type of official intrusion into that home, as this case appears to do, an immediate and natural reaction is one of concern about Fourth Amendment rights and the protection which that Amendment is intended to afford. Its emphasis indeed is upon one of the most precious aspects of personal security in the home: “The right of the people to be secure in their persons, houses, papers, and effects ; . . .” This Court has characterized that right as “basic to a free society.” Wolf v. Colorado, 338 U. S. 25, 27 (1949); Camara v. Municipal Court, 387 U. S. 523, 528 (1967). And over the years the Court consistently has been most protective of the privacy of the dwelling. See, for example, Boyd v. United States, 116 U. S. 616, 626-630 (1886); Mapp v. Ohio, 367 U. S. 643 (1961); Chimel v. California, 395 U. S. 752 (1969); Vale v. Louisiana, 399 U. S. 30 (1970). In Camara Mr. Justice White, after noting that the “translation of the abstract prohibition against 'unreasonable searches and seizures’ into workable guidelines, for the decision of particular cases is a difficult task,” went on to observe,
“Nevertheless, one governing principle, justified by history and by current experience, has consistently been followed: 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.” 387 U. S., at 528-529.
He pointed out, too, that one’s Fourth Amendment protection sübsists apart from his being suspected of criminal behavior. 387 U. S., at 530.
IV
This natural and quite proper protective attitude, however, is not a factor in this case, for the seemingly obvious and simple reason that we. are not concerned here with any search by the New York social service agency in the Fourth Amendment meaning of that term. It is true that the governing statute and regulations appear to make mandatory the initial home visit and the subsequent periodic “contacts” (which may include home visits) for the inception and continuance of aid. It is also true that the caseworker’s posture in the home visit is perhaps, in a sense, both rehabilitative and investigative. But this latter aspect, we think, is given too broad a character and far more emphasis than it deserves if it is equated with a search in the traditional criminal law context. We note, too, that the visitation in itself is not forced or compelled, and .that the bene-Sciary’s denial of permission is not a criminal act. If iorisent to the visitation is withheld, no visitation takes place. The aid then never begins or merely ceases, as the case may be. There is no entry of the home and there is no search.
V
If however, we were to assume that a caseworker’s home visit, before or subsequent to the beneficiary’s initial qualification for. benefits, somehow (perhaps because the average beneficiary might feel she is in no position to refuse consent to the visit), and despite its interview nature, does possess some of the characteristics of a search in the traditional sense, we nevertheless conclude that the visit does not fall within the Fourth Amendment’s proscription. This is because it does not descend to the level of unreasonableness. It is unreasonableness which is the Fourth Amendment’s standard. Terry v. Ohio, 392 U. S. 1, 9 (1968); Elkins v. United States, 364 U. S. 206, 222 (1960). And Mr. Chief Justice Warren observed in Terry that “the specific content and incidents of this, right must be shaped by the context in which it is asserted.” 392 U. S., at 9.
There are a number of factors that compel us to conclude that the home visit proposed for Mrs. James is not unreasonable:
1. The public’s interest in .this particular segment of the area of assistance to the unfortunate is protection and aid for the dependent child whose family requires such aid for that child.. The focus is on the child and, further, it is on the child who is dependent. There is no more worthy object of the public’s concern. The dependent . child’s. needs are paramount, and only with hesitancy would we relegate those needs, in the scale of comparative values, to a position secondary to what the . mother claims as her rights.
2. The agency, with tax funds provided from federal as well as from state sources, is fulfilling a public trust. The State, working through its qualified welfare agency, has appropriate and paramount interest and concern in seeing and assuring that the intended and proper objects of that tax-produced assistance are the ones who benefit; from the aid it dispenses. . Surely it is not unreasonable, in the Fourth Amendment sense or in any other sense of that term, that the State have at its command a gentle means, of limited extent and of practical and. considerate application, of achieving that, assurance.
3. One who dispenses purely private charity naturally has an interest in and expects to know how his charitable funds are utilized and put to work. The public, when it is the provider, rightly expects the same. It might well expect more, because of the trust aspect of public funds, and the recipient, as well as the caseworker,, has not only an interest but an obligation.
4. The emphasis of the New York statutes and regulations is upon the home, upon “close contact” with the beneficiary, upon restoring the aid recipient “to a condition of self-support,” and upon the relief of his distress. The. federal emphasis is no different. It is upon “assistance and rehabilitation,” upon maintaining and strengthening family life, and upon “maximum self-support and personál independence consistent with the maintenance of continuing parental care and protection . . . .” 42 U. S. C. §601 (1964 ed., Supp. V); Dandridge v. Williams, 397 U. S. 471, 479 (1970), and id., at 510 (Marshall, J., dissenting). It requires cooperation from the state agency upon specified standards and in specified ways. And it is concerned about any possible exploitation of the child.
5. The home visit, it is true, is not required by federal statute or regulation. But it has been noted that the visit is “the heart of welfare administration”; that it affords “a personal, rehabilitative orientation, unlike that. of most federal programs”; and that the “more pronounced service orientation” effected by Congress with the 1956 amendments to the Social Security Act “gave redoubled importance to the practice of home visiting.” Note, Rehabilitation, Investigation and the Welfare Home Visit, 79 Yale L. J. 746, 748 (1970). The home visit is an established routine in States besides New York.
6. The means employed by the New York agency are significant. Mrs. James received written notice several days in advance of the intended home visit. The date was specified. Section 134-a of the New York Social Services Law, effective April 1, 1967, and set forth, in n. 2, supra, sets the tone. Privacy is emphasized. The applicant-recipient is made the primary source of information as to eligibility. Outside informational sources, other than public records, aré to be consulted only with the beneficiary’s consent. Forcible entry or entry under false pretenses or visitation outside working hours or snooping in the home are forbidden. HEW Handbook of Public Assistance Administration, pt. IV, §§ 2200 (a) and 2300; 18 NYCRR §§351.1, 351.6, and 351.7. All this minimizes any “burden” upon the homeownér’s right against unreasonable intrusion.
7. Mrs. James, in fact, on this record presents no specific complaint of any unreasonable intrusion of her home and nothing that supports an inference that the desired home visit had as its purpose the obtaining of information as to criminal activity. She complains of no proposed visitation at an awkward or retirement hour. She suggests no forcible entry. She refers to no snooping. She describes no impolite or reprehensible conduct of any kind. She alleges only, in general and nonspecific terms, that on previous visits and, on information and belief, on visitation at the home of other aid recipients, “questions concerning personal relationships, beliefs and behavior are raised and pressed which are unnecessary for a determination of continuing eligibility.” Paradoxically, this same complaint could be. made of a conference held elsewhere than in the home, and yet this is what is sought by Mrs. James. The same complaint could be made of the census taker’s questions. See Me. Justice Makshall’s opinion, as United States Circuit Judge, in United States v. Rickenbacker, 309 F. 2d 462 (CA2 1962), cert. denied, 371 U. S, 962. What Mrs. James appears to want from the agency that provides her and her infant son with the necessities for life is the right to receive those necessities upon her own informational terms, to utilize the Fourth Amendment as a wedge for imposing those terms, and to avoid questions of any kind.
8. We are not persuaded, as Mrs.- James would have us be, that all information pertinent to the issue of eligibility can be obtained by the agency through an interview at a place other than the home, or, as the District Court majority suggested, by examining a lease or a birth certificate, or . by periodic medical examinations, or by interviews with school personnel. 303 F. Supp., at 943. Although these secondary sources might be helpful, they would not always assure verification of actual residence or-of actual physical presence in the home, which are requisites for AFDC benefits, or of impending medical needs. And, of course, little children, such as Maurice James, are not yet registered in school.
9. The visit is not one by police or uniformed authorrity. It is made by "a caseworker of some training whose primary objective is, or should be, the welfare, not the prosecution, of the aid recipient for whom the worker has profound responsibility. As has already been stressed, the program concerns dependent children and the. needy families of those children. It does not deal with crime or with the actual or suspected perpetrators of crime. The caseworker is not a sleuth but rather, we trust, is a friend to one in need.
10. The home visit is not a criminal investigation, does not equate with a criminal investigation, and despite the announced fears of Mrs. James and those who would join her, is not in aid of any criminal proceeding. If the visitation serves to discourage misrepresentation or fraud, such a byproduct of that visit does not impress upon the visit itself a dominant criminal investigative aspect. And if the visit should, by chance, lead to the discovery of fraud and a criminal prosecution should follow, then, even assuming that the evidence discovered upon the home visitation is admissible, an issue upon which we express no opinion, that is a routine and expected fact of life and a consequence no greater than that which necessarily ensues upon any other discovery by a citizen of criminal conduct.
11. The warrant procedure, which the plaintiff appears to claim to be so precious to her, even if civil in nature, is not without its seriously objectionablé features in the welfare context. If a warrant could be obtained (the plaintiff affords us little help as to how it would be obtained), it presumably could be applied for ex parte, its execution would require no notice, it would justify entry by force, and its hours for execution would not be so limited as those prescribed for home visitation. The warrant necessarily would imply conduct either criminal or out of compliance with an asserted governing standard. Of course, the force behind the warrant argument, welcome to the one asserting it, is the fact that it would have to rest upon probable cause, and probable cause in the welfare context, as Mrs. James concedes, requires more than the mere need of the caseworker to see the child in the home and to have assurance that the child is there and is receiving the benefit of the aid that has been authorized for it. In this setting, the warrant argument is out of place.
It seems to us that the situation is akin to that where an Internal Revenue Service agent, in making a routine civil audit of a tapayer’s income tax return, asks that the taxpayer produce for the agent’s review some, proof of a deduction the taxpayer has asserted to his benefit in the computation of his tax. If thé taxpayer refuses, . there is, absent fraud, only a disallowance of the claimed deduction and a consequent additional tax. The taxpayer is fully within his “rights” in refusing to produce the proof, but in maintaining and asserting those rights a tax detriment results and it is a detriment of the taxpayer’s own making. So here Mrs. James has the “right” to refuse the home visit, but a consequence in the form of cessation of aid,' similar to the taxpayer’s resultant additional tax, flows' from that refusal. The choice is entirely hers, and nothing of constitutional magnitude is involved.
VI
Camara v. Municipal Court, 387 U. S. 523 (1967), and its companion case, See v. City of Seattle, 387 U. S. 541 (1967), both by a divided. Court, are not inconsistent with our result here. Those cases concerned, respectively, a refusal of entry to city housing inspectors checking for a violation of a building’s occupancy permit, and a refusal of entry to a fire department representative interested in compliance with a city’s fire code. In each case a majority of this Court held that the Fourth Amendment barred prosecution for refusal to permit the desired warrantless inspection. Frank v. Maryland, 359 U. S. 360 (1959), a case that reáched an opposing result and that concerned a request by a health officer for entry in order to check the source of a rat infestation, was pro tanto overruled. Both Frank and Camara involved dwelling quarters. See had to do with a commercial warehouse.
But the facts of the three cases are significantly different from those before us. Each concerned a true search, for violations. Frank was a criminal prosecution for the owner’s refusal to permit entry. So, too, was See. Cam-ara had to do with a writ of prohibition sought to prevent an already pending criminal prosecution. The community welfare aspects, of course, were highly important, but each case arose in a criminal context where a genuine search was denied and prosecution followed.
In contrast, Mrs. James is not being prosecuted for her refusal to permit the home visit and is not about to be so prosecuted. Her wishes in that respect are fully honored. We. have not been told, and have not found, that her refusal is made a criminal act by any applicable New York or federal statute. The only consequence of her refusal is that the payment of benefits ceases. Important and serious as this is, the situation is no different than if she had exercised a similar negative choice initially and refrained frorp applying for AFDC benefits. If a statute made her refusal a criminal offense, and if this case were one concerning her prosecution under that statute, Camara and See would have conceivable pertinency.
VII
Our holding today does not mean, of course, that a termination of benefits upon refusal of a home visit is to be upheld against constitutional challenge, under all conceivable circumstances. The early morning maás raid upon homes of welfare recipients is not unknown. See Parrish v. Civil Service Comm’n, 66 Cal. 2d 260, 425 P. 2d 223 (1967); Reich, Midnight Welfare Searches and the Social Security Act, 72 Yale L. J. 1347 (1963). But that is not this case. Facts of that kind present another cáse for another day.
We therefore conclude that the home visitation as structured by the New York statutes and regulations is a reasonable administrative tool; that it serves a valid and proper administrative purpose for the dispensation of the AFDC program; that, it'is not an unwarranted invasion of personal privacy; and that it violates no right guaranteed by the Fourth Amendment.
Reversed and remanded with directions to enter a judgment of dismissal.
It is so , ordered.
Mr. Justice White concurs in the judgment and joins the opinion of the Court with the exception of Part IV thereof.
In Goldberg v. Kelly, 397 U. S. 254, 256 n. 1 (1970), the Court observed that AFDC is a categorical assistance program supported by federal grants-in-aid but administered by the States according to regulations of the Secretary of Health, Education, and Welfare. See New York Social Services Law §§ 343-362 (1966 and Supp. 1969-1970). Aspects of AFDC have been considered in King v. Smith, 392 U. S. 309 (1968); Shapiro v. Thompson, 394 U. S. 618 (1969); Goldberg v. Kelly, supra; Rosado v. Wyman, 397 U. S. 397 (1970); and Dandridge v. Williams, 397 U. S. 471 (1970).
Ҥ 134. Supervision.
“The public welfare officials responsible . . ..'for investigating any. application for public assistance and care, shall maintain close contact with persons granted public assistance and care. Such persons shall be visited as frequently as is provided by the rules of the board' and/or regulations of the department or required by the circumstances of the case, in order that any treatment-or service tending to restore such persons to a condition of self-support and to relieve their distress may be rendered and in order that assistance or care may be given only in such amount and as long as necessary. The circumstances of a person receiving continued care shall be re-investigated as frequently as the rules of the board or regulations of the department may require.”
Section 134-a, as added by Laws 1967, c. 183, effective April 1, 1967, provides:
“In accordance with regulations- of the department, any investigation or- reinvestigation of eligibility . . . shall be limited to those factors reasonably necessary to insure that expenditures shall be in accord with applicable provisions of this chapter and the rules of the board and regulations of the department and shall be conducted in siich manner so as not to violate any civil right of the applicant or recipient. In making such investigation or reinvfestigation, sources of information, other than public records, shall be consulted only with the permission of the applicant or recipient. However, if such permission is not granted by the applicant or recipient, the appropriate public welfare official may deny, suspend or discontinue public assistance or care until such time as he may- be satisfied that such applicant or recipient is eligible therefor.”
“Mandatory visits must be made in accordance with law that requires that persons be visited at least once .every three months if they are receiving . . . Aid to Dependent Children . . .
4 “Section 351.10. Required, home . visits and contacts. Social investigation as defined and described . . . shall be made of each application or- reapplication for public assistance or-care as the basis for determination of initial eligibility.
“a. Determination of initial eligibility, shall include contact with the applicant and at least one home visit which shall be made promptly in accordance with agency policy. . . .”
“Section 351.21. Required contacts. Contacts with recipients and collateral sources shall be adequate as to content and frequency and shall include home visits, office interviews, correspondence, reports oh resources and other necessary documentation.”
Section 3.69.2 of Title 18 provides in part: “(c) Welfare of child or minor. A child or minor shall be considered to be eligible for ADC if his home situation is one in which his physical, mental and moral well-being will be safeguarded and his religious faith preserved and protected. (1) In determining the ability of a parent or relative to care for the child so that this purpose is achieved, the home shall be judged by the same standards as are applied to self-maintaining families in the community. When, at the time of application, a home does not meet the usual standards of health and decency but the welfare of the child is not endangered, ADC shall be granted and defined services provided in an effort to improve the situation. Where appropriate, consultation or direct service shall be requested from child welfare.”
No issue of procedural due process is raised in. this case. Cf. Goldberg v. Kelly, 397 U. S. 254 (1970), and Wheeler v. Montgomery, 397 U. S. 280 (1970).
The federal regulations require only periodic redeterminations of eligibility. HEW Handbook of Public Assistance Administration, pt. IV, § 2200 (d). But they also require verification of eligibility by making field- investigations “including home visits” in a selected sample of cases. Pt. II, §6200 (a)(3).
See, e. g., Ala., Manual for Administration of Public Assistance, pt. 1-8 (B) (1968 rev.); Ariz., Regulations promulgated pursuant to Rev. Stat. Ann. §46-203 (1956), Reg. 3-203.6 (1968); Ark. Stat. Ann. §83-131 (1960); Cal. State Dept, of Social Welfare. Handbook, C-012.50 (1964); Colo. Rev. Stat. Ann. § 119-9-1 et seq. (Supp. 1967), as amended, Laws 1969, c. 279; Fla. Public Assistance c. 100; Ga. Division of Social Administration — Public Assistance Manual, pt. III, §V (D)(2), pt. VIII (A) (1) (b) (1969); Ill. Rev. Stat., c. 23, §4-7 (1967); Ind. Ann. Stat. §52-1247 (1964), Dept. Pub. Welfare, Rules & Regs., Reg. 2-403 (1965); Mich. Public Assistance Manual, Item 243 (3) (F) (Rqv.) (1967); Miss. Code Ann. § 7177 (1942) (Laws of 1940, c. 294); Mo. Public Assistance Manual, Dept, of Welfare, § III (1969); Nebraska, State Plan and Manual Regulations, pt. IX, §§ 5760, 5771; N. J., Manual of Administration, Division of Public Welfare, pt. II, §§2120, 2122 (1969); N. M. Stat. Ann. § 13-1-13 (1953), Health and Social Services Dept. Manual, §§211.5, 272.11; S, C. Dept, of Public Welfare Manual, Vol. IV (D)(2); S. D. Comp. Laws Ann. §28-7-7 (1967) (formerly S. D. Code §55.3805); Tenn. Code Ann. §14-309 (1955), Public Assistance Manual, Vol. II, p. 212 (1968 rev.); Wis. Stat. § 49.19 (2) (1967).
It is true that the record contains 12 affidavits, all essentially identical, of aid recipients (other than Mrs. James) which recite that a caseworker “most often” comes without notice; that when he does, the plans the recipient had for that time cannot be carried out; that the visit is “very embarrassing to me if the caseworker, comes when I have company”; and that the caseworker “sometimes asks very personal questions” in front of children.
We have examined Mrs. James’ case record with the New York City Department of Social Services, which, as an exhibit, accompanied defendant Wyman’s answer. It discloses numerous interviews from the time of the initial one on April 27, 1967, until the attempted termination in June 1969. The record is revealing as to Mrs. James’ failure ever really to satisfy the requirements for eligibility; as to constant and repeated demands; as to attitude toward the caseworker; as to reluctance to cooperate; as to evasiveness; and as to occasional belligerency. There are indications that all was not always well with the infant Maurice (skull fracture, a dent in the head, a possible rat bite). The picture is a sad and unhappy one.
§ 406 (a) of the Social Security Act, as amended, 42 U. S. C. § 606 (a) (1964 ed., Supp. V); § 349B1 of the New York Social Services Law.
The amicus brief submitted on behalf of the Social Services Employees Union Local 371, AFSCME, AFL-CIO, the bargaining representative for the social service staff" employed in the New York City Department of Social Services,- recites that “caseworkers are either badly trained or untrained” and that “[generally, a case-. worker is not only poorly trained, but also young and inexperienced . . . Despite this astonishing description by the union of the. lack of qualification of its own members for the work they are employed to do, we must assume that the caseworker possesses at least some qualifications and some dedication to duty.
See, for example, New York Social Services Law § 145.
New York Code Crim. Proc. § 801.
See Appendix II to this opinion.
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_circuit
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Appellee, v. Eugene Lamar JACKSON, Appellant, UNITED STATES of America, Appellee, v. Ruth JACKSON, Appellant.
Nos. 16375, 16376.
United States Court of Appeals Third Circuit.
Argued July 17, 1967.
Decided Oct. 17, 1967.
G. W. Wilde, Pittsburgh, Pa., for appellant Eugene Lamar Jackson.
Thomas F. Lamb, Pittsburgh, Pa., for appellant Ruth Jackson.
Lawrence G. Zurawsky, Asst. U. S. Atty., Gustave Diamond, U. S. Atty., Pittsburgh, Pa., for appellee in both cases.
Before BIGGS, McLAUGHLIN and WAN DUSEN, Circuit Judges.
OPINION OF THE COURT
GERALD McLAUGHLIN, Circuit Judge.
Eugene Lamar Jackson and his wife Ruth Jackson were both convicted on two counts for violating 26 U.S.C. Sections 4742(a) and 4744(a) (2), of the federal narcotics law. Although appellants were tried separately the questions presented by both appeals are similar in nature and will be treated together in this opinion.
The allegations of error have as their basis the common factual circumstances under which the illegal sales of narcotics were purportedly made. On March 15, 1966 Eugene Jackson was approached by undercover agent Norton J. Wilder of the Federal Narcotics Bureau and an informer, special employee of the Bureau. Agent Wilder testified that after the informer had introduced him to Jackson he negotiated and consummated a sale ot marijuana with the defendant. On May 12, 1966 at about 6:30 P.M. agent Wilder and the informer went to the Jackson residence in Pittsburgh, Pennsylvania, for the purpose of furthering the investigation against Eugene Jackson. At the doorway they were met by the appellant, Ruth Jackson, who told the men that her husband was not at home. Wilder then spoke with Ruth Jackson expressing his desire to buy some “bush” (marijuana). She apparently agreed to the sale and produced two brown envelopes of the narcotic which the agent purchased. At their trials appellants’ attorneys asked that the name of the informer be revealed so that he could be questioned to determine his possible usefulness as a witness for the defense. The trial judge ruled against disclosure in both instances and it is with that decision that Ruth and Eugene Jackson now assert error on appeal.
In United States v. Day (opinion filed October 10, 1967), 384 F.2d 464, this Court had the opportunity of discussing some aspects of the informer dilemma in light of the Supreme Court’s decision in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Rovario holds that the Government has a privilege of nondisclosure, but that the privilege must give way “[w]here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, * * 353 U.S. 53 at 60, 61, 77 S.Ct. at 628. However, the Supreme Court felt that “ * * * no fixed rule with respect to disclosure is justifiable.” and deposited with the trial judge the task of “ * * * balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” 353 U.S. 53 at 62, 77 S.Ct. at 628. In the informer ' situation the burden placed upon the trial judge is great since he must often balance conflicting interests without being aware of what relevant information, if any, the informer possesses. In Day the writer’s opinion approved of a procedure employed by the District Court which I think made a substantial contribution to meliorating the disclosure dilemma. The other members of the Day panql refrained from passing upon the procedure followed by the District Court. There the trial judge conducted an in camera confrontation with the informer, who was made to take the oath and testify as to any relevant knowledge he had pertaining to the crime. A record of that in camera session was transcribed and sealed so that only an appellate court would have access to its contents. The advantage of the procedure is that it enables the court to view with a keener perspective the factual circumstances upon which it must rule and attaches to the court’s ruling a more abiding sense of fairness than could otherwise have been realized.
At the trial of Eugene Lamar Jackson the informer was questioned in camera by the trial judge as to the possible physical danger he would encounter if disclosure were allowed and as to any testimony he could offer that might aid the defendant’s cause. An examination of the in camera record reveals that disclosure of the informer’s identity would not have been helpful or essential to a fair determination of the cause; and therefore, it is our opinion that the trial judge’s ruling was not erroneous.
The appeal of Ruth Jackson presents a different problem since there the trial judge did not have the opportunity to conduct an in camera interrogation of the informer. However, the district court’s opinion notes that “ * * * although the United States Marshal extended untiring efforts to have the informer in this proceeding brought to court for a special interrogation, * * * the United States Marshal was not able to secure the presence of said informer.” Thus, absent any evidence showing that the informer would have offered testimony in support of the defense, we fail to see how appellant can base her appeal for a new trial on the ground that the informer’s identity should have been disclosed when in fact that person had disappeared. The shallowness of this claim is further highlighted by the testimony of agent Wilder, that at the time Ruth Jackson made the sale of narcotics there was another woman present in the Jackson home. At the trial there were no witnesses called to support the defense of mistaken identity — that Ruth Jackson was not the person who sold marijuana to agent Wilder on the evening of May 12, 1966. Plainly, appellant is not prejudiced because the informer was not present to testify at her trial since there was reliable testimony indicating that another witness was available who could have substantiated Ruth Jackson’s story. We feel under all the circumstances that the decision of the trial judge was correct.
Also cited as error by both appellants was the refusal by the trial judge to permit the defense attorneys to argue to the jury that, since the Government did not produce the informer (a material witness), they (the jury) may infer that his testimony would be unfavorable to the Government’s case. Appellants’ contention rests on the rule in Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893), followed by this Court in United States v. Jackson, 257 F.2d 41 (3 Cir. 1958), that:
“The rule, even in criminal cases, is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.” 150 U.S. 118 at 121, 14 S.Ct. 40 at 41.
It is sufficient to say that in the appeal of Ruth Jackson it was not within the Government’s power to produce the informer since under the facts that individual had disappeared. But even if the informer could have been produced, as was the case in the trial of Eugene Jackson, that type of comment on the part of the defense would not be proper. The holding in Graves allows the presumption of unfavorableness to arise only when the Government fails to call someone who would qualify as a witness. When a court denies disclosure in accord with the Roviaro privilege it is in effect ruling that the Government has the privilege to disqualify the informer as a witness. Clearly, if the court allowed the defense counsel to make such inferential statements it would be penalizing the Government for invoking its lawful privilege and would be taking the inconsistent position of condoning, remarks which cut against the rationale of the court’s previous ruling on disclosure —that the informer possessed no information relevant or helpful to the defense of the accused.
We have thoroughly examined the remaining contentions raised by appellants and find them without merit.
The judgments of the District Court will be affirmed.
. Mr. Mattingly, agent in charge of the Federal Bureau of Narcotics, testified in this case, as he had in United States v. Day, 384 F.2d 464 (3 Cir. 1967) (concurrence op.), that if informers such as the one involved in this case are discovered, they are in jeopardy of losing their life or suffering grave bodily harm. Counsel for defendant conceded:
“I agree with your conclusion that in all probability this informer is going to indicate that his life will be in jeopardy if he testifies and faces the defendant in this particular case as an accuser.”
See also, United States v. Day, supra, at 464 (concurrence op.).
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_usc1sect
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7402
|
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 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America and Bradley P. Whites, Special Agent of the Internal Revenue Service, Appellees, v. NORTHWESTERN NATIONAL BANK, through Wallace B. Hanson, Vice-President; and First Baltic Branch, First National Bank of Sioux Falls, through Lynn Aspaas, Vice-President, Respondents, v. Robert A. LARSEN, Intervenor-Appellant.
No. 80-1559.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 11, 1980.
Decided Nov. 14, 1980.
Robert A. Larsen, appellant-without counsel.
M. Carr Ferguson, Asst. Atty. Gen., Michael L. Paup, Daniel F. Ross, Philip I. Brennan, Attys., Tax Division, Dept, of Justice, Washington, D.C., filed brief, for appellees; Terry L. Pechota, U.S. Atty., of counsel.
Before BRIGHT, ROSS and McMILLIAN, Circuit Judges.
PER CURIAM.
Appellant, Robert A. Larsen (Taxpayer), appeals from an order of the district court enforcing two IRS summonses for the purpose of determining his income tax liability for 1977-78. Taxpayer in his pro se appeal asserts three principal challenges to the enforcement of the summonses: (1) the constitutionality of the IRS to issue the summonses and of the district court to enforce them; (2) the authority of the IRS and the jurisdiction of the district court on the basis that Federal Reserve notes are not legal tender and that only dollars containing gold or a mixture of gold and silver are constitutionally taxable; and (3) the issuance of the summonses was not in good faith. We affirm and dissolve the stay pending appeal.
Taxpayer’s constitutional challenge to the authority of the IRS to issue summonses and of the district court to enforce them is in reality a constitutional attack on the underlying statutory authority of the IRS, 26 U.S.C. § 7602, and of the district court, 26 U.S.C. §§ 7402(b) and 7604(a). Taxpayer’s constitutional attack on these statutes is without merit. Our court upheld the constitutionality of the challenged statutes in United States v. National Bank of South Dakota, 620 F.2d 193 (8th Cir. 1980). In addition, Taxpayer’s arguments that Federal Reserve notes are not taxable dollars and that the only “legal tender dollars” are those which contain a mixture of gold and silver have been consistently rejected by this court. United States v. Moon, 616 F.2d 1043, 1047-48 (8th Cir. 1980).
Finally, Taxpayer has also failed to overcome the government’s prima facie showing of good faith. Through the testimony of its agent, Bradley P. Whites, at the show cause hearing, the IRS made a prima facie showing that (1) the investigation was being conducted for a legitimate purpose; (2) the inquiry was relevant to that purpose; (3) the information sought was not already in the Commissioner’s possession; and (4) the administrative steps required by the Internal Revenue Code have been properly followed. United States v. LaSalle National Bank, 437 U.S. 298, 313-14, 98 S.Ct. 2357, 2365-66, 57 L.Ed.2d 221 (1978).
Taxpayer asserts that the sole purpose of the investigation was criminal. In support of this assertion, he points to the testimony of Special Agent Bradley P. Whites that the investigation was conducted through the Criminal Investigation Division of the IRS, and to a letter dated March 3, 1980, which he received from the group manager of the Criminal Investigation Division notifying Taxpayer that he was being investigated for possible criminal violations and for a determination of his income tax liability for 1977-78. The letter also reminded Taxpayer of his fifth amendment rights and warned him that any information or documents that he may turn over to the IRS might be used against him if a criminal proceeding would ever be undertaken. This evidence only proves that a joint criminal and civil investigation was undertaken. It does not prove bad faith, especially in the light of the additional testimony of Agent Whites that the investigation was carried on in cooperation with the Examination Division and that the IRS had not recommended a criminal prosecution of Taxpayer to the Department of Justice. Noting the inseparability of criminal and civil goals in an IRS investigation, the courts have been extremely reluctant to find bad faith in the absence of a recommendation of a criminal prosecution to the Department of Justice. See, e. g., United States v. First National Bank of New Jersey, 616 F.2d 668, 671 (3d Cir. 1980). While there might be some extraordinary circumstances with which a taxpayer might prove bad faith in the absence of a recommendation to prosecute, Taxpayer has failed to prove any such extraordinary circumstance. See United States v. Garden State National Bank, 607 F.2d 61, 66-70 (3d Cir. 1979); United States v. Genser, 595 F.2d 146 (3d Cir. 1979) (Genser II).
We conclude that the district court properly ordered the summonses enforced. The order of the district court enforcing the summonses is affirmed and the stay pending appeal is dissolved.
. The Honorable Fred J. Nichol, United States Senior District Judge for the District of South Dakota.
. The relevant parts of the letter read:
As you know, you are being investigated for possible criminal violations of the Internal Revenue Code for 1977 and 1978. This includes a determination of your correct income tax liability for those years. On January 8, 1980 Mr. Whites attempted to talk to you about this in Sioux Falls; however, you refused to talk to him.
******
This letter does not constitute your solicitation for corrected or amended tax returns from you. You are still under investigation for possible criminal violations of the Internal Revenue laws, and as such you should be aware of your rights under the 5th Amendment to the U. S. Constitution. Thus, any information or documents you may send to us could be used against you in any criminal proceedings which may be undertaken. In this regard, you may wish to seek the assistance of an attorney before responding in the future.
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 26? Answer with a number.
Answer:
|
songer_circuit
|
H
|
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.
NATIONAL LABOR RELATIONS BOARD v. INJECTION MOLDING CO. et al.
No. 14889.
United States Court of Appeals, Eighth Circuit.
March 9, 1954.
Rehearing Denied April 5, 1954.
Harry L. Browne, Kansas City, Mo. (Joseph J. Kelly, Jr., Kansas City, Mo., on the brief, Spencer, Fane, Britt & Browne, Kansas City, Mo., of counsel), for respondent, Injection Molding Co.
Max H. Frankie, New York City (Philip J. Ruífo, New York City, was on the brief), for respondent Union, Local No. 161.
Owsley Vose, Washington, D. C., (George J. Bott, Gen. Counsel, David P. Findling, Assoc. Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Nancy M. Sherman, all of National Labor Relations Board, Washington, D. C., on the brief), for National Labor Relations Board.
Before SANBORN, JOHNSEN, and COLLET, Circuit Judges.
COLLET, Circuit Judge.
The Respondent Company, which will be referred to hereafter as the Respondent , employed somewhat less than fifty persons, mostly women, in its business in Kansas City, Missouri. It had a collective bargaining agreement with Local 710 of the CIO, which was made June 21, 1949, and which was by its terms to expire July 1, 1950. On February 15, 1950, CIO Local 710 was expelled from the CIO. On the same day the regional office of the United Automobile, Aircraft, Agricultural Implement Workers of America of the CIO (UAW-CIO) notified Respondent that a majority of Respondent’s employees had designated it to act as their sole bargaining agent and requested that Respondent voluntarily recognize it as such. Its local was No. 132, which will hereafter be referred to-as CIO. The following day, February 16, 1950, CIO filed with the National Labor Relations Board a petition seeking certification as Respondent’s employees’ bargaining agent. Mr. William Archer, president of Respondent, was away at the time. Early in March, after his return, representatives of CIO called upon him and requested recognition as Respondent’s bargaining agent. They were informed that that should be determined by a Board election. Archer so informed Respondent’s employees. There is evidence to the effect that he addressed the employees twice, once on March 8, 1950, and again on March 15, 1950, and that he indicated positive opposition to the CIO as Respondent’s bargaining agent and suggested the formation of an independent union. A petition for the formation of such a union was circulated but met with no success. A large national independent union, the International Association of Machinists, then began the solicitation of Respondent’s employees. The CIO was already so engaged. The former later became affiliated with the American Federation of Labor with AFL Local 161 as its local union. The latter is also a respondent in this action but will be referred to as AFL or Local 161.
April 17, 1950, CIO called a strike. A large number of Respondent’s employees responded. Operation of the plant continued. In the latter part of April, 1950, Respondent filed charges with the Board charging CIO with violation of the Act. Early in May the AFL filed a petition with the Board seeking certification as the sole bargaining agent. On June 2, 1950, Respondent, the CIO, and the AFL executed a strike settlement agreement by which all charges were agreed to be withdrawn, all strikers were to return to work, and all parties agreed that an election be held June 30, 1950, to determine the bargaining agent. The withdrawal of the charges was approved by the Board’s regional director and the striking employees were reinstated on June 5, 1950. Respondent issued a statement of strict neutrality, and Mr. Archer read a prepared statement to all employees to that effect. The AFL won the election. Thereafter on July 25, 1950, 13 of a total of 38 employees were discharged. Six of them had been actively supporting the CIO in the strike. Four more who had been active in support of the CIO were separately discharged on July 11, August 8, August 22, and September 25, 1950. Two CIO adherents were rehired at reduced wages. All filed charges and complaints charging various violations of the Labor-Management Relations Act, 29 U.S. C.A. § 141 et seq. One named the AFL with Respondent. All charges were sustained by the Trial Examiner and the Board. The specific charges and the defenses will be stated in connection with the discussion of each issue presented. In general terms those issues are summarized by counsel for Respondent as follows:
“The crux of this case concerns 10 alleged discriminatory discharges or layoffs and whether the findings are supported by substantial evidence on the record considered as a whole. Of these 10, 3 were discharged for cause in connection with their work, 6 were laid off or terminated as a result of an economic reduction of force, and 1 was discharged for failure to pay uniform initiation fees pursuant to a union-shop contract.”
It has been the general policy of this court in recent years not to recite in detail the evidence pro and con in passing upon the issue of the substantiality of the evidence to support findings of the Board. Occasionally there has been a departure from the general policy, ordinarily for the purpose of demonstrating the basis for our conclusion that substantial evidence to support a finding did not exist. We see no reason for departing from the general policy in this case.
It was charged, and the Board found, that the six employees discharged July 25, 1950, Emma Bandy, Ruby Hobbs, Louise Lembke, Nona Shaw, Hazel Tim-mons and Nadine Ring, were discharged because of their activity on behalf of the CIO in violation of Sec. 8(a)(3) and (1) of the Labor-Management Act, 29 U.S. C.A. § 158(a)(1) and (3). These six employees had been active on behalf of the CIO and had taken an active part in the strike. Neither the Trial Examiner nor the Board found that Mr. Archer was “anti-union”, but the record does support the conclusion that he was antagonistic to the selection of the CIO' as the bargaining agent after Local 710 was expelled from the CIO. Respondent vigorously contended and now contends that these discharges were for economic reasons and were made in connection with a reduction in personnel for economic reasons. Respondent insists that there is no substantial evidence to the contrary, and hence the finding of the Board is not supported by substantial evidence.
Nettie Harper was discharged August 8, 1950. She had been an active supporter of the CIO and a picket during the strike, at which time she had several conversations with Mr. Archer. Respondent contended she was discharged because of poor work. The Board found that she was discharged because of her membership in and activities on behalf of the CIO in violation of Sec. 8(a) (1) and (3) of the Act. Respondent contends there is no substantial evidence to support that finding.
Elsie Mary May was discharged August 22, 1950. She had been elected a stewardess of the CIO in February, 1950, and took an active part in the CIO campaign and the strike. Respondent contended she was discharged for inefficiency. The Board found she was discharged because of her CIO union .activities in violation of Sec. 8(a)(1) and (3) of the Act. Respondent contends there is no substantial evidence to support the finding.
As to each of the foregoing, the findings of the Board are supported by substantial evidence. Respondent argues that the Board has shifted the burden of proof to it and has based its findings on the inadequacy of evidence to establish its asserted lawful reasons for the discharges rather than the sufficiency of the evidence to establish unlawful discharges. The Examiner’s report and the Board’s discussion of the issues both emphasize what is deemed to be an insufficient evidentiary explanation of the discharges consistent with the grounds Respondent contends were the motivating causes of the discharges. This would appear to give some foundation to Respondent’s contention. The Board could not place the burden of proof on Respondent. But we do not understand that it did so. In undertaking to point out what it deemed to be the weakness of Respondent’s evidence in support of the reasons Respondent assigned for the discharges, the Board was recognizing the rule laid down in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, that the evidence found in the record as a whole must be considered, and the attending requirement that the Respondent’s evidence must be weighed and not disregarded. After the Board performs that function and determines which of the opposing contentions is supported by the greater weight of the evidence, on submission of the issue of substantiality of the evidence to support the Board’s finding, the court’s province is confined to a determination of whether on the record as a whole, including of course the Respondent’s evidence, the evidence upon which the Board based its finding was substantial. In doing that the court must make a comparison, not for the purpose of determining which contention is supported by the greater weight of the evidence, but in order to determine whether the evidence relied on by the Board is substantial in relation to the whole. Dannen Grain & Milling Co. v. National Labor Relations Board, 8 Cir., 130 F.2d 321; National Labor Relations Board v. Stafford, 8 Cir., 206 F.2d 19. Respondent’s evidence on the foregoing issues is, to us, persuasive, to say the •least. But there was substantial evidence to the contrary. Under those circumstances the Board’s finding of fact is conclusive.
September 26, 1950, Respondent rehired Ruby Hobbs and Evelyn Russell, who had previously been employees. Both had been active supporters of the CIO and both had charges pending against Respondent charging discrimination in their previous discharges. Ruby Hobbs was one of the six discharged on July 25, 1950. Both were invited to return to work by Mr. Archer. When they reported they understood that they were to be rehired at 95 cents an hour, the rate of pay that they had been receiving before their discharge. After they reported but before they were reemployed, they handed Mr. Archer a letter stating that they were not withdrawing their charges and that by reporting for work they were not relinquishing any rights they might have because of their alleged unlawful previous discharge. Whereupon they say that Mr. Archer became angry and stated that “that changes things” and that he would have to consult his attorney. Thereafter he left for a short time and upon his return handed them a written statement reading:
“We offered you employment with this Company of vacancies which have arisen. We are willing to employ you now without prejudice to the charges which you have filed with the National Labor Relations Board. In other words, so far as the Company is concerned, you can process the Labor Board charge if you desire. That has nothing to do with your employment now.
“However, since your present employment is necessarily a new employment, you will therefore return with seniority beginning today, and at the starting rate we are now required to give under the contract which we have with the Union.” and then said, “Well, girls if you can get rough, I can get rough, too.” The Board found that the reason for the reduction in their starting wage from that which it had theretofore been was because they did not drop their charges, in violation of Sec. 8(a)(1) and (4) of the Act. 29 U.S.C.A. § 158(a) (1) and (4). These facts were disputed, but there was substantial evidence in support of the Board’s finding.
As heretofore stated, the consent election for the determination of the bargaining agent was held June 30, 1950. After that election, on August 15, 1950, a new contract was made with the AFL. That contract contained a provision for a union shop. Prior to the 1951 Amendment of the Labor-Management Relations Act, the 1947 Act permitted a union shop provision only after an election at which a majority of the employees voted therefor and the result had been certified. The Board’s rules and regulations then in effect allowed five days after the election for either party to file objections to the election. In contrast see Radio Officers’ Union of Commercial Telegraphers Union, A. F. L. v. National Labor Relations Board, 347 U. S. 17, 74 S.Ct. 323. Hence, formal certification was held in abeyance pending objection, if any. 3 That election was held August 25, 1950. The vote was favorable to the inclusion of the provision. The Board’s representative notified Respondent and the union of the result of the election on August 25, 1950. The result was formally certified on September 5, 1950. The contract provided in effect that no one should be discharged for failure to belong to the union until thirty calendar days after employment or the effective date of the contract, after the appropriate provisions of the Labor-Management Relations Act of 1947 had been complied with. Assuming that formal compliance with the Act was not complete until formal certification of the results of the union shop ratification election, National Labor Relations Board v. Kingston Cake Co., 3 Cir., 191 F.2d 563, no discharge was appropriate under the contract or Sec. 8(a)(3) of the Act, 29 U.S.C.A. § 158(a)(3), until thirty days after September 5, 1950.
Prior to August 25, 1950, the AFL Local changed its initiation fee from $2.00 to $10.00 Annabell Woolen refused to pay $10.00, contending she should be admitted for $2.00. On September 21, 1950, the union formally notified Respondent to discharge Woolen “not later than September 26, 1950,” pursuant to the contract, for failure of Woolen to tender the $10.00 initiation fee. Mr. Archer showed her the letter. She indicated she would refuse to pay it. He advised her to think it over for a week. She demanded to see a copy of the contract. The president of AFL Local 161 produced a copy for her the next day and after some discussion told her that she would have to pay the $10.-00 initiation fee, that she would never get in for $2.00. She testified that she said, “Well, I’ll never get in for $10.00.” September 25, 1950, two employees asked her if she had joined the union and she said she would pay $2.00 but would not pay $10. Mr. Archer then asked her if she had decided to join the union and she told him she would not pay $10 because the union was discriminating against her. He then told her he would have to discharge her. She was discharged that day, September 25, 1950. On November 30 or December 1, 1950, in a conversation with Respondent’s attorney she appears to have expressed the same opinion. The Trial Examiner found that Respondent and the AFL “were well advised that Woolen would not in any event pay the $10 initiation fee,” but that the union’s demand for the $10.00 was made before the effective date of the union shop agreement and the union shop contract was applied prematurely, hence the Respondent violated Sec. 8(a)(3) and (1) of the Act and the union violated Sec. 8 (b)(2) and 8(b)(1) and (A) of the Act. The Trial Examiner found that the union did not discriminate against her when it refused her membership in the Union except at the $10 initiation fee.
The Board approved and adopted the findings. Its order dated May 5, 1953, ordered her reinstatement and payment of her loss of earnings from the date of her discharge on August 25, 1950. The chairman of the Board dissented on the ground that he “would not mechanically apply the usual 8(a)(3) remedy, but would omit any remedy for so technical a violation.”
The application of the usual 8 (a)(3) remedy under the circumstances was arbitrary in a legal sense. The Trial Examiner and the Board found that the union did not discriminate against Woolen when it required the payment of the $10 initiation fee. She refused to pay it after being requested to do so time after time. She was adamant in her refusal at the time of her discharge and fully understood the reason for her discharge. She did not complain that her discharge was premature. Her complaint was that the AFL was discriminating against her. She lost that argument before the Trial Examiner and the Board. While the record does not positively show that she understood she was being offered re-employment December 1, 1950, upon the sole condition that she join the union and without withdrawing her pending charges against Respondent, it shows without contradiction that Respondent’s attorney offered to recommend her reinstatement if she paid the $10 initiation fee and told her his recommendation would be accepted. In the same connection the Trial Examiner found, with the approval of the Board, that the record would not justify a finding that Respondent refused her re-employment because she would not agree to withdraw her charges. She did not pay the initiation fee in December, 1950. She has not paid it since. There is not the slightest indication in the record that she would have paid the fee prior to the expiration of the 30-day period following September 5, 1950. The record clearly demonstrates that she would not. The misunderstanding of the union concerning the expiration date of the 30-day period and the Respondent’s acceptance of the union’s demand that she be discharged did her no wrong or injustice and deprived her of no right she could have had under the course of conduct she elected to follow, unless it be her continued employment for approximately ten days, about which there is and has been no issue. The application of the Sec. 8(a)(3) remedy on behalf of an employee in the absence of any deprivation of any substantial right or injury to the employee must be held to be arbitrary.
The Trial Examiner found that Respondent deducted a fine of one dollar from Edward Field’s pay without authority. Apparently this fine was in the nature of an assessment levied by the union against its member Field for nonattendance at a union meeting. Evidently the union notified Respondent to make the deduction. Field quit work for other reasons and, as he expressed it, “I just let it go,” — referring to the one dollar assessment. The general counsel for the Board attached more importance to the incident and amended the complaint at the time of the hearing to charge Respondent with violation of Sec. 8(a)(1) and 8(a)(3) on account of it. The contract between the union and Respondent authorized deductions of only “union membership dues (including assessments if they are regularly part of membership dues) and initiation fees, and turn the same over to the union * * The Trial Examiner found, as heretofore stated, that the deduction was unauthorized and that it constituted a violation of Sec. 8(a)(1). The Board approved the finding with one member dissenting. The Board’s theory is that the contract did not authorize the deduction and the unauthorized action of Respondent in making it was “calculated to discourage Field in the exercise of rights guaranteed him in Section 7 of the Act,” guaranteeing employees the right to refrain from union activities. The theory of the dissent is that one having joined the union, he may not pick and choose what union activities he will participate in contrary to union rules, and be protected by the Board in disregarding the union rules. The principle involved in the disagreement within the Board is not presented by the facts. We agree with the Board that the contract did not authorize the deduction. That being true, it was for the Board to say whether the deduction was likely to amount to improper coercion in violation of that portion of Section 7 quoted in the preceding footnote. That determination is final unless clearly arbitrary. It does not appear arbitrary.
Mildred Spangler (Ludwig) was discharged July 11, 1950. She was away from work three weeks without permission. Respondent says that is the reason she was discharged. The Trial Examiner and the Board found that the reason was because of her activities on behalf of the CIO. That finding is challenged on the ground that it is not supported by substantial evidence. We find no evidence which in our judgment is substantial to support the finding. Her conduct was so devoid of consideration for the obligation she owed her employer and her employment that the Appeals Referee, in passing upon her application for Missouri unemployment benefits, found that:
“The claimant’s actions in this instance represent such a willful disregard of her employer’s interest as to amount to misconduct connected with her work. The Referee accordingly finds that the claimant was discharged for misconduct connected with her work.”
Unemployment benefits were denied her upon that ground. The dereliction of this employee was so glaring that the Board’s condonation of her conduct and its conclusion that she was discharged for other and improper reasons is not supported by the record evidence viewed in its entirety.
The Missouri statute requires that service letters be given discharged employees. Respondent contends that since such letters given employees involved in this action were offered in evidence by the general counsel, the statements contained therein to the effect that the discharges were for reasons other than those prohibited by the Labor-Management Relations Act were binding upon the general counsel and the Board must accept them as the true reasons for the discharges. The contention is without merit. The letters were naturally offered for other reasons. The ■weight to be given the statements contained in the letters was, like other evidence, for the Board to determine.
Respondent’s assignment that the report of the Trial Examiner, adopted by the Board, is so manifestly biased and unfair that an order based upon it cannot stand is without merit.
In its brief Respondent asserts that “The Board’s order should not be enforced because of the prejudicial delay in the processing of this matter.” The following cases are cited in support of that assignment: United States v. Beebe, 127 U.S. 338, 8 S.Ct. 1083, 32 L.Ed. 121; United States v. Diamond Coal & Coke Co., 255 U.S. 323, 41 S.Ct. 335, 65 L.Ed. 660; LaClair v. United States, C. C., 184 F. 128; The Falcon, D.C., 19 F.2d 1009; United States v. Des Moines Valley R. Co., C.C., 70 F. 435. None of the cases cited has any controlling application. There is no reference to the subject in the Board’s brief. The elapsed time between the filing of the charges in the summer of 1950 and the final order of the Board on May 5, 1953, was inordinately long. There may have been good reason for the delay. We are not referred to anything in the record which explains it. A motion by Respondent to dismiss on the ground of delay in filing the complaint is referred to in the record, and an offer of proof was made that Respondent was at all times cooperative with the Board in the investigation of the charges. But that furnishes no explanation. The Act contemplates an expeditious handling of these cases, but we find in the Act no remedy to be applied by the courts for lack of it. The injury to Respondent results from the application of the customary Sec. 8(a) (3) remedy by the Board for the entire period from the date of discharge until date of reinstatement of the employees ordered reinstated. But it is ordinarily for the Board to determine the appropriate remedy within the limits fixed by the Act. In the absence of anything more than appears in this record, there is no justification for giving the question further consideration. See and compare National Labor Relations Board v. Norfolk Shipbuilding & Drydock Corp., 4 Cir., 172 F.2d 813; Eagle-Picher Mining & Smelting Co. v. National Labor Relations Board, 8 Cir., 119 F.2d 903; National Labor Relations Board v. American Creosoting Co., 6 Cir., 139 F.2d 193; National Labor Relations Board v. Cannon Mfg. Corp., 9 Cir., 177 F.2d 197; National Labor Relations Board v. Sun Tent-Luebbert Co., 9 Cir., 151 F.2d 483; National Labor Relations Board v. Central Dispensary & Emergency Hospital, 79 U.S.App.D.C., 274, 145 F.2d 852.
The order of the Board should be modified by eliminating the remedy ordered on behalf of Mildred Spangler (Ludwig) and Annabell Woolen, and as so modified the Petition of the Board for the enforcement of its order is granted.
. The other Respondent will he referred to as the Union or as AFL (Local 161).
. “ * * * the Board shall * * * take a secret ballot of such employees, and shall certify the results thereof to such labor organization and to the employer.” Sec. 9(e) (1), Ch. 120, Title I, Sec. 101, 61 Stat. 143.
. “ * * * and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a) (3) of this title.” 29 U.S.C.A. § 157.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_appel1_7_2
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "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").
Robert GUY, Plaintiff-Appellant, v. TRAVENOL LABORATORIES, INC., Defendant-Appellee.
No. 86-2553.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 13, 1986.
Decided March 4, 1987.
Phillip Gregory Kelley (Lentz, Ball & Kelley, P.A., Asheville, N.C., on brief) for plaintiff-appellant.
Philip Marshall Van Hoy (Mullins & Van Hoy, Charlotte, N.C., Maynard, Youngs, Associate Gen. Counsel, Deerfield, 111., Travenol Laboratories, Inc. on brief), for defendant-appellee.
Before ERVIN and WILKINSON, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
WILKINSON, Circuit Judge:
Robert Guy brought this wrongful discharge action after being fired from his supervisory position at Travenol’s North Carolina drug manufacturing plant, allegedly for refusing to falsify certain production and control records. Travenol denied those allegations in its answer and responded that, under North Carolina’s doctrine of employment at will, an employer may fire an employee for virtually any reason. The district court granted defendant’s motion to dismiss for failure to state a claim under North Carolina law. We think the district court properly interpreted North Carolina law, and we affirm its judgment.
I.
In his complaint, Guy alleged that Travenol employees were falsifying certain records “pertaining to the quality and quantity” of pharmaceuticals that drug manufacturers are required to keep under the Food and Drug Administration regulations. 21 C.F.R. § 211.180-198. Falsification of these records may violate the Food, Drug, and Cosmetic Act. 21 U.S.C. § 301, et seq. (1972). When Guy allegedly notified his supervisors that they were violating federal law, he was told to cooperate. When he allegedly refused to falsify the records to exclude wasted and defective drugs, he was fired. Travenol denies these allegations. Because the complaint was dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, however, these alleged facts must be accepted as true. In his prayer for relief, plaintiff claims compensatory damages of $12,138 and punitive damages of $1,000,000.
II.
Federal courts must consider the availability of any wrongful discharge suit in North Carolina against the backdrop of North Carolina’s manifest commitment to the doctrine of employment at will. The North Carolina Supreme Court first recognized the doctrine in the 19th century and has reaffirmed its contemporary vitality. The state Supreme Court has applied it even in cases where the employer had indisputably offered permanent employment. Its cases admit but two exceptions, neither of which is applicable here.
In its pristine form, the doctrine of employment at will permits an employee to be discharged for almost any reason. As a matter of tort law, the doctrine precludes an action for wrongful discharge. Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 139 S.E.2d 249, 251 (1964); Miller v. Ruth’s of North Carolina, Inc., 69 N.C.App. 672, 318 S.E.2d 2, 4 (1984). As a matter of contract law, the doctrine precludes the unilateral representations of an employer from forming part of the contract of employment. Smith v. Monsanto Co., 71 N.C.App. 632, 322 S.E.2d 611, 613 (1984); Still v. Lance, 279 N.C. 254, 182 S.E.2d 403, 406 (1971).
The doctrine of employment at will apparently began in Edwards v. Seaboard R.R. Co., where the court stated that an employee and employer were free “to sever their relationship at will, for their own convenience.” 121 N.C. 490, 28 S.E. 137, 137 (1897). During the following ninety years, the North Carolina Supreme Court has continuously accorded employers broad freedom in employment decisions. For example, when an employer offered an employee a “regular permanent job”, the court found an at will employment relationship. Malever v. Kay Jewelry Co., 223 N.C. 148, 25 S.E.2d 436, 436 (1943).
Even where an employer agreed that an employee would “have a permanent job as long as (his) work was satisfactory,” the court again found the employment to be at will. Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 139 S.E.2d 249, 250 (1964). On one occasion, an employee was told that, if he wanted to make a career with the company, he had to attend a three-week training session out of town. Five days after arriving at the session, the employee was fired without cause. The court said that the employment was terminable at will, even if the employer had offered a job “upon a permanent basis.” Howell v. Commercial Credit Corp., 238 N.C. 442, 78 S.E.2d 146, 147 (1953).
The North Carolina Supreme Court summed up the doctrine when it said “a contract of employment, even though it expressly refers to the employment as ‘a regular, permanent job,’ is terminable at the will of either party irrespective of the quality of performance by the other party.” Still v. Lance, 279 N.C. 254, 182 S.E.2d 403, 406 (1971). North Carolina continues to adhere to this version of the “at will” doctrine. In its latest case on the subject, the state Supreme Court reaffirmed the settled rule that an “employment contract in North Carolina is terminable at the will of either party.” Presnell v. Pell, 298 N.C. 715, 260 S.E.2d 611, 616 (1979).
The North Carolina Court of Appeals has built upon the state Supreme Court’s strong support for the concept. In one case, the employee handbook provided that laid-off employees would be hired back according to seniority. When the employer laid off some employees with the possibility of recall within the year, it subsequently hired independent contractors and temporary help rather than rehire the idled employees. The court held that the laid-off workers had no cause of action because their employment was terminable at will. Smith v. Monsanto Co., 71 N.C.App. 632, 322 S.E.2d 611 (1984).
In Bennett v. Eastern Rebuilders, Inc., 52 N.C.App. 579, 279 S.E.2d 46 (1981), a union employee was promoted to management. Because of the employee’s concern over job security, the employer agreed to demote her to her old position, rather than fire her, if her work proved unsatisfactory. The company subsequently fired the employee without complying with this transfer agreement. Although the employee had explicitly bargained for job security, the court granted only nominal damages, finding that the employer was entitled to demote the employee and then fire her for any reason.
As these cases reveal, the at will doctrine commands long and continued support in the North Carolina courts even in what may appear unusual and extenuating circumstances. The courts of North Carolina have recognized that every adverse employment decision presents a potentially litigable conflict of fact and perception, that the judicial resources of North Carolina should not generally be expended on such matters, and that the freedom of employers to dismiss employees perceived as unreliable or incompetent should not be lightly circumscribed.
It is, of course, immaterial whether a federal court sitting in diversity subscribes to North Carolina’s choice in this perennial area of state law controversy. The North Carolina Supreme Court has recognized but two exceptions to the doctrine: an employee has a wrongful discharge suit only when he obtains an employment contract of fixed duration or gives some extra consideration, such as a change of residence or the dismissal of a personal injury claim, in return for permanent employment. Still, 182 S.E.2d at 405; Tuttle, 139 S.E.2d at 251. While Guy alleges not that he was arbitrarily discharged, but that he was discharged for refusal to perform a wrongful act, his lawsuit cannot be viewed apart from a near-century of commitment in the state of North Carolina to the doctrine of employment at will. Indeed, Guy pleads the very tort and contract claims that the doctrine has always been thought to proscribe.
III.
Confronted with this body of precedent, Guy relies upon the recent case of Sides v. Duke Hospital, which he believes creates a public policy exception to the at will doctrine. In Sides, the North Carolina Court of Appeals held that an employer cannot fire an employee for refusing to commit perjury. 74 N.C.App. 331, 328 S.E.2d 818 (1985). As the Sides opinion and three subsequent appellate cases recognize, this decision created only a narrow public policy exception to the doctrine of at will employment. Because it is a limited exception, most readily explained as an exercise of the judiciary’s supervisory powers over the proper conduct of court proceedings, Sides does not provide Guy with a viable cause of action.
In Sides, a nurse alleged that she was fired because she refused to perjure herself both as a deponent and a witness in a medical malpractice case. The court’s opinion emphasized the need to prevent perjury and preserve judicial integrity. As the court noted, perjury is “an affront to the integrity of our judicial system, an impediment to the constitutional mandate of the courts to administer justice fairly, and a violation of the- right that all litigants in this State have to have their cases tried upon honest evidence fully given.” Sides, 328 S.E.2d at 823-24. To deny a cause of action in that case would have been a “grave disservice to the public and the system of law that we are sworn to administer.” Sides, 328 S.E.2d at 824.
Despite some language dealing with the general need to uphold the law and support public policy, the court’s holding was very specific: “no employer in this State, notwithstanding that an employment is at will, has the right to discharge an employee ... because he refuses to testify untruthfully or incompletely in a court case.” Sides, 328 S.E.2d at 826. The holding rests on the belief that the need to protect the judicial process from the perjured testimony of an intimidated witness outweighs the employer’s right to fire an employee. This limited exception to the doctrine is not surprising. The courts obviously have a special obligation to promote the integrity and truthfulness of the judicial process.
The Sides case is limited, however, by more than its holding and its language. Three subsequent appellate cases reaffirm the narrow scope of that decision. In Walker v. Westinghouse Elec. Co., 77 N.C. App. 253, 335 S.E.2d 79 (1985), the North Carolina Court of Appeals demonstrated its reluctance to expand the Sides exception. In that case, an employee alleged that he was fired in retaliation for raising safety concerns relating to the Westinghouse plant. Although North Carolina has a statute protecting employees who file a complaint with the state OSHA commission, N.C.Gen.Stat. § 95-130(6) (1981), the court was unwilling to establish a general cause of action for any employee who raised a safety concern.
The court characterized Sides as granting a cause of action to employees “on the grounds that the public policy requiring truthfulness before our courts outweighed the employer’s freedom to discharge employees at will.” Walker, 335 S.E.2d at 85. Although the Walker court ultimately concluded that the employee had not presented sufficient evidence to survive the employer’s motion for summary judgment, the decision does reveal the court’s unwillingness to restrict the “at will” doctrine. See also Rupinsky v. Miller Brewing Co., 627 F.Supp. 1181, 1185 (W.D.Pa.1986) (noting that, in Walker, North Carolina Court of Appeals “recently qualified its decision in Sides.”)
In Trought v. Richardson, 78 N.C.App. 758, 338 S.E.2d 617 (1986), a nurse alleged that she was fired for transferring two licensed practical nurses from the emergency room. She claimed that the “at will” doctrine did not apply because in removing the nurses she was following state law, here the state Nursing Practice Act. The court, however, stated that “we do not believe this allegation is sufficient to come within or enlarge the exception created by Sides.” Trought, 338 S.E.2d at 619. The Trought decision, which the district court in this case found dispositive of the motion to dismiss, held that an employee does not come within the Sides exception by alleging that she was fired for attempting to comply with state law.
The North Carolina Court of Appeals continued to limit the new exception in Hogan v. Forsyth Country Club Co., 79 N.C.App. 483, 340 S.E.2d 116 (1986). In Hogan, several female employees claimed that they were fired in retaliation for complaining about the sexual advances of a fellow male employee. The employees argued that Sides allowed a wrongful discharge suit whenever an employee is terminated in violation of public policy. Hogan quickly rejected this interpretation, noting that “though Sides spoke in broad terms of ‘public policy,’ its holding was actually very narrow.” Hogan, 340 S.E.2d at 125. While noting that the claim appeared cognizable under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq., the court rejected the employees’ request to recognize a new public policy exception to the doctrine of employment at will in North Carolina. Id., 340 S.E.2d at 126.
In sum, the Sides opinion and the holdings of three subsequent appellate cases reveal that, instead of seriously eroding the at will doctrine, Sides was intended to be a limited perjury exception. At this point, the law of North Carolina is well-established. An employer may terminate any employee for any reason unless the employee has a specific duration contract, gave some additional consideration for permanent employment, or lost his job for refusing to give perjured testimony. Because his complaint does not come within any of these exceptions, Guy has failed to state a cause of action under state law.
IV.
Having failed to allege a cause of action under state law, Guy offers a more expansive argument. According to Guy, this court should create a cause of action because, if employees can be fired for complying with the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301, et seq., they will be more willing to falsify records, which would impair the Food and Drug Administration’s enforcement of the Act. Whatever the appeal of this argument, Guy is presenting it to the wrong forum. A federal court sitting in diversity simply cannot compel a state to provide a cause of action in tort to supplement enforcement of a federal statute.
Despite Guy’s warnings to the contrary, creating a state recovery in tort is not the only way to protect the public against the sale of impure drugs. Congress has enacted a detailed statutory scheme to enforce the Act’s prohibition of the sale of adulterated drugs. Under this scheme, drug companies must manufacture their products in accordance with the FDA’s regulations on “current good manufacturing practices.” 21 U.S.C. §§ 331, 351(a)(2)(B) (1972). In addition to regulating the actual manufacture of drugs, these regulations require drug companies to keep accurate production and control records. 21 C.F.R. § 211.180-198. To ensure that drug companies comply with these regulations, the Act provides the FDA with broad statutory authority to inspect a manufacturer’s plant and examine any “records, files, papers, processes, controls and facilities.” 21 U.S.C. § 374(a)(1) (Supp.1986).
If the agency discovers a violation, the Act provides numerous remedies. For example, the FDA may seize the adulterated drugs. 21 U.S.C. § 334(a) (Supp.1986). The agency may also seek an injunction against any manufacturing practice that violates the Act. 21 U.S.C. § 332(a) (1972). Most importantly, producers of adulterated drugs are subject to possible criminal sanctions of up to three years imprisonment and a maximum fine of $10,000. 21 U.S.C. § 333(b) (1972).
In sum, the Food, Drug, and Cosmetic Act establishes a complex enforcement scheme. Under this scheme, Travenol is subject to unannounced agency inspections. The FDA may seize any impure or adulterated drugs, and may seek to enjoin any company practice in violation of the statute. Any Travenol employees who violate the statute by falsifying required records are subject to criminal sanctions.
According to Guy, this federal enforcement scheme is incomplete unless he is allowed to bring a wrongful discharge suit. Because, as we have noted, North Carolina has been reluctant to recognize such an action, Guy is essentially arguing that the state should be compelled to supplement the Act’s enforcement scheme by providing a wrongful discharge action. North Carolina, however, has no obligation to use its tort law system to supplement the enforcement of a federal statute. As the Supreme Court has noted, “the State’s interest in fashioning its own rule of tort law is paramount to any discernible federal interest....” Martinez v. California, 444 U.S. 277, 282, 100 S.Ct. 553, 557, 62 L.Ed.2d 481 (1980) (upholding state statute granting immunity to parole board employees for any injury resulting from their decision to release a prisoner).
Congress itself has declined to pass an anti-retaliation statute to protect employees who refuse to violate the Food, Drug, and Cosmetic Act. Congress was apparently aware of the potential risks faced by employees who refuse to cooperate with an employer’s violation of a statute. Several statutory schemes provide that, if an employee is fired for instituting or assisting an agency investigation of a suspected statutory violation, the employee must be reinstated with back pay. See, e.g., Federal Water Pollution Control Act, 33 U.S.C. § 1367 (1986); Federal Surface Mining Control and Reclaimation Act of 1977, 30 U.S.C. § 1293 (1986); Energy Reorganization Act of 1974, 42 U.S.C. § 5851.
Congress could have protected Guy by establishing a similar procedure by which drug company employees could notify the FDA of a violation without fear of retaliatory termination. If such a statute had been passed, Guy could have refused Travenol’s demand to violate the FDA regulations, reported the violation to the agency, and been protected from a retaliatory firing. Rather than provide this employee protection, Congress has decided to enforce the Food, Drug, and Cosmetic Act through a different statutory scheme. We are loathe to require the states to create a protective scheme in tort where Congress has declined to pass such legislation in furtherance of its own enactment.
The decision to create an additional measure of enforcement through a wrongful discharge action involves a choice between two competing state policies, a choice federal courts sitting in diversity cannot make. One policy, which has its academic champions, is the protection of employees against employer abuse. See Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum.L.Rev. 1404 (1967); Summers, Individual Protection Against Dismissal: Time for a Statute, 62 Va.L.Rev. 481 (1976). Recognizing the claim here might indeed have salutary consequences. It might protect those employees who follow FDA regulations, prevent unscrupulous employers from forcing employees to choose between holding their job or following federal law, and prevent the sale of impure drugs.
For all these possible benefits, however, a wrongful discharge action may also have undesirable effects. There is a risk that many employees who are properly terminated will try to claim the exception, particularly those in sensitive drug-related industries such as pharmacies, pharmaceutical companies, doctors’ offices, and hospitals. There is a danger that the always uncertain prospects of litigation will deter employers in these industries from legitimate personnel decisions, even with respect to those employees whose continued contact with drugs in the workplace poses a variety of public risks.
The balance between encouraging legitimate claims and discouraging spurious ones is for North Carolina to strike. So also is the balance between employee rights and employer perogatives. This is particularly true in tort and contract law, whose elements of recovery and damages lie at the heart of state, not federal, public policy. When confronted with a request to modify or create a state cause of action, a federal court must recall the Supreme Court’s admonition that “where in (diversity) cases one is barred from recovery in the state court, he should likewise be barred in the federal court.” Woods v. Interstate Realty Co., 337 U.S. 535, 538, 69 S.Ct. 1235, 1237, 93 L.Ed. 1524 (1949). The Erie doctrine “calls on us to apply state law, not, if we can be persuaded to doubt its soundness, to participate in an effort to change it.” Tarr v. Manchester Ins. Corp., 544 F.2d 14, 15 (1st Cir.1976).
The point is as simple as it is unavoidable: in diversity cases, when state law provides an answer, federal courts must abide by that law. North Carolina law does provide the answer in this case: outside of a few restricted limitations that do not apply, an employer may terminate an employee for any reason. Thus, Guy has no cause of action against Travenol. In applying state law, federal courts have always found the road straighter and the going smoother when, instead of blazing new paths, they restrict their travels to the pavement.
The judgment of the district court is
AFFIRMED.
Hogan does offer some slight support for Guy’s position because it characterized Sides as creating a cause of action for employees who refuse "to perform an act prohibited by law.” Hogan, 340 S.E.2d at 126. We do not, however, believe that single sentence to be dispositive. The Hogan court was not trying to provide the definitive interpretation of Sides or attempting to expand the Sides decision — the court was merely trying to show that the cause of action recognized in that case was something less than a broad public policy exception. In light of the nearly 100 years of employment at will in North Carolina, the language of Sides, and the holdings of the three later cases, including Hogan, a single sentence in dicta is not sufficient to create a new cause of action for Guy.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
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.
PERRY v. UNITED STATES.
No. 10632.
United States Court of Appeals Sixth Circuit.
Nov. 22, 1948.
Taylor & Taylor, of Memphis, Tenn., and E. T. Palmer, of Dyersburg, Tenn., for appellant.
Wm. McClanahan and John Brown, both of Memphis, Tenn., for appellee.
Before HICKS, Chief Judge, MARTIN and McALLISTER, Circuit Judges.
HICKS, Chief Judge.
■ This suit was brought on July 21, 1947, against United States of America, under Sec. 410(a) of the Federal Tort Claims Act, 28 U.S.C.A. § 931(a).
The parties will be styled as plaintiff and defendant as they appeared in the court below. The plaintiff, Loretta Ann Perry, a minor under fifteen years of age, sued by her father as next friend. Omitting immaterial matters, the complaint alleged: that on the 19th day of April 1943, the plaintiff started across Highway No. 51 in the edge of Halls in Lauderdale County, Tenn., when a military policeman, belonging to the Armed Forces of the United States and riding a motorcycle in a dangerous and reckless manner, ran it against, and injured her; and that the motorcycle was a part of the equipment furnished by defendant and was being used by said military policeman while on duty.
The defendant moved to dismiss upon three grounds. The third ground was that the Act under which the complaint was brought applies only to causes of action arising since January 1, 1945. The court sustained the motion, hence this appeal.
We think that the court was right. The Federal Tort Claims Act was passed on August 2, 1946. U.S.C.A.Title 28, Ch. 20, § 921 et seq. Prior to its passage the district court had no jurisdiction over claims against the United States for torts. But Sec. 931 (a) provided, among other things, that the district court for the district wherein the plaintiff is resident, or wherein the act complained of occurred, “shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, accruing on a<nd after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred.” (Italics ours.)
As we stated in Old Colony Insurance Co. v. United States, 6 Cir., 168 F.2d 931, 933, there is nothing ambiguous is Sec. 931(a). By its terms the court was given jurisdiction to hear and determine claims against the United States for personal injury accruing only after January 1, 1945, and the specific averment of the complaint is that plaintiff was injured on the 19th day of April 1943. In an effort to avoid this plain obstacle, plaintiff points out that under sub-section 20 of Sec. 41, Title 28 U.S.C.A. it is provided that, “the claims * * * .of persons under the age of twenty-one years, first accrued during minority, * * * shall not be barred if the suit be brought within three years after the disability has ceased * * *.” Her contention is, that because she was a minor under fifteen years of age at the time her suit was brought, the statute of limitations quoted continued the accrual of her cause of action until after January 1, 1945, and that her case was therefore timely brought. This contention is wholly fanciful and without basis either in law or fact.
On the motion to dismiss, it must be taken as true that her right of action, if any she had, was against the military policeman alone, for wrongfully striking her with the motorcycle on April 19, 1943. We must conclude that his wrongful act terminated on that occasion and that the United States of America had no connection with it either directly or indirectly. The complaint contains no allegation that any part of the policeman’s unlawful conduct continued into the future, or, to be more specific, to or beyond January 1, 1945, the date upon which the defendant might become liable. The above quoted statute of limitations avails the plaintiff nothing. Simply stated, it provides that a minor who has a claim first accrued during minority may bring suit upon it within three years after she has reached her majority. It does not serve, either by itself or in connection with the Federal Tort Claims Act, to give the district court jurisdiction to hear and determine a claim against defendant for a cause of action which, as against it, never existed.
Our conclusion is further supported by the fact that the Act which was passed on August 2, 1946, was made applicable to claims accruing on or after January 1, 1945, —or more than eighteen months prior to its passage. That date clearly fixes the limit of retroactivity.
Affirmed.
1948 Judicial Code, 28 U.S.C.A. § 1346.
1948 Judicial Code, 28 U.S.C.A. §§ 1291, 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671-2680.
1948 Judicial Code, 28 U.S.C.A. § 2401.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_dissent
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
DIAMOND SHAMROCK OIL AND GAS CORPORATION, v. COMMISSIONER OF REVENUES, STATE OF ARKANSAS, Marvin Humphries, Robbie Louise Humphries, H. F. Techmeyer, Jewel Techmeyer, Appellants, L. L. Blair, Heirs of L. L. Blair, Irene Sadler, Ocie B. Haraway, Inez Blaylock, Ardath Ferry, Clifford J. Blair, Larue Blair, Appellants, W. O. Dunaway, Margaret Dunaway, Charles H. Earl, Wanda F. Earl, Sneed Brothers, a Partnership Consisting of Four Brothers (S. T. Sneed, Jr., M. H. Sneed, Hugh M. Sneed and William J. Sneed), Arkansas Mineral Corporation, Jeff Regan, Alice T. Regan, Appellees, Frank Farris, Opal Farris, Carol Taylor Mohlman, Lena Farris, Eugenia Farris Rowe, Bertha A. Stubblefield, and Henry E. Spitzberg, Trustee, Appellee, Thomas C. Mueller, Norma Mueller, J. A. Mull, Jr., C. R. Sullivan and W. F. Earl.
No. 19754.
United States Court of Appeals, Eighth Circuit.
March 10, 1970.
Sam Sexton, Jr., of Sexton & Wiggins, Fort Smith, Ark., for appellants; Eddie N. Christian, Fort Smith, Ark., on the brief.
Charles W. Baker, of Moses, McClellan, Arnold, Owen & McDermott, Little Rock, Ark., for appellees; William L. Owen, Little Rock, Ark., on the brief.
Before VAN OOSTERHOUT, Chief Judge, and BLACKMUN and HEANEY, Circuit Judges.
VAN OOSTERHOUT, Chief Judge.
A notice of appeal was filed in the District Court on April 18, 1969, reading as follows:
“The Defendants, H. F. Techmeyer, Marvin Humphries, Robbie Louise Humphries, Jewel Techmeyer, Irene Sadler, Ocie B. Haraway, Inez Blaylock, Ardath Ferry, Clifford J. Blair and Larue Blair, give notice of appeal to the United States Court of Appeals for the Eighth Circuit from the decision of the Court made and entered in this cause on the 18th day of April 1969.”
The appellants in their brief state, “This is an appeal from the Order and Opinion of the Honorable Paul X. Williams, District Judge for the Western District of Arkansas, entered on the 7th day of April, 1969.” The opinion referred to is a letter opinion of Judge Williams dated April 7, 1969, addressed to counsel with copy to clerk, which appears in the printed record. Such letter reflects that Judge Williams reached the conclusion that the word “minerals” in deeds conveyed mineral rights including oil and gas. The letter goes on to say:
“The motion for summary judgment will be treated as a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and such motion is sustained, and an order to that effect will be entered.
“The prevailing parties shall prepare and submit the judgment to be entered pursuant to this opinion and order of the court.”
The notice of appeal refers to a judgment entered on April 18, 1969. The printed record shows no such judgment.
We are convinced that the letter opinion does not constitute a final decision or judgment. By its terms as above quoted, the subsequent filing of a judgment is clearly contemplated.
Moreover, a final decision is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911; Transportation-Communication Division v. St. Louis-San Francisco Ry. Co., 8 Cir., 419 F.2d 933; Stewart v. Bishop, 8 Cir., 403 F.2d 674, 678; Gallon v. Lloyd-Thomas Co., 8 Cir., 261 F.2d 26.
Assuming for the purposes of this opinion without so deciding that the letter opinion could be considered a judgment, it is clear that the decision does not dispose of all of the issues raised by the litigation. The action is an interpleader action brought by the plaintiff pursuant to 28 U.S.C.A. § 1335 wherein the plaintiff asserts that it has substantial amounts of accumulated oil royalties which it owes and which it offered to deposit and did deposit for the benefit of numerous adverse claimants who might be found entitled thereto. In order to finally dispose of the litigation, it is necessary that a judgment be entered determining the claimants entitled to the money and the amount due each claimant. There is nothing in the record to show that such a determination has been made.
It is the duty of a court of appeals to satisfy itself as to its jurisdiction, whether or not the jurisdictional issue is raised by the parties. Stewart v. Bishop, supra. Jurisdiction cannot be conferred by consent. Courts of appeals have only such jurisdiction as is given them by Congress.
The final judgment rule is a dominant rule in federal appellate practice. DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 7 L.Ed.2d 614; Stewart v. Bishop, supra.
We find nothing whatsoever in the record which would indicate that the appeal here falls within any of the exceptions to the final judgment rule. There is no record that any foundation has been laid for an interlocutory appeal authorized by 28 U.S.C.A. § 1292(b) or that the provisions of Rule 54(b) have been invoked.
If in fact a final decision was entered prior to the filing of the notice of appeal or if a proper foundation was laid for an interlocutory appeal, any party may file proof thereof with the clerk of this court within two weeks from the filing of this opinion, whereupon the issue of jurisdiction to entertain the appeal will be given further consideration and if jurisdiction is established, the case will be tried upon its merits. If no such showing is made within such time, this appeal will stand dismissed for want of appellate jurisdiction.
. The Clerk of the District Court has advised us that no judgment was entered on April 18, 1969, or at any time during the interval between the date of the letter opinion and April 18. 1969.
. If a subsequent timely appeal in taken from a final judgment in this case, this court will entertain such appeal upon the records, and briefs prepared for this appeal insofar as applicable. See Gallon v. Lloyd-Thomas Co., 8 Cir., 261 F.2d 26, 28, and cases there cited.
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_appel1_1_4
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "agriculture". Your task is to determine what subcategory of business best describes this litigant.
FACUNDO et al. v. YABUCOA SUGAR CO.
No. 3564.
Circuit Court of Appeals, First Circuit.
March 10, 1941.
Edward O. Proctor, of Boston, Mass. (Guillermo Silva and Geigel & Silva, all of San Juan, P. R., on the brief), for appellants.
E. T. Fiddler, of San Juan, P. R. (Fiddler, McConnell & Gonzalez, of San Juan, P. R., on the brief), for appellee.
Before MAGRUDER and MAHONEY, Circuit Judges, and PETERS, District Judge.
MAGRUDER, Circuit Judge.
This was a suit for annulment of foreclosure proceedings and revendication of certain real properties, brought against the present recorded owner, whose title is derived, through various mesne conveyances, from a deed executed by the marshal pursuant to a foreclosure sale. A judgment by the District Court of Humacao dismissing the complaint was affirmed by the Supreme Court of Puerto Rico, from whose judgment the present appeal is taken.
Fortunately the facts of this protracted and intricate litigation, or series of litigations, need not be set forth at length; a drastically condensed statement will suffice for the disposition of the case, in the view we take of it.
The present plaintiffs are members or successors of members of a dissolved agricultural partnership called Cintron Hermanos. This partnership was constituted by public deed in 1891, for a term expiring June 30, 1901. In 1895, to secure advances made to the partnership by El Banco Territorial y Agrícola de Puerto Rico (hereinafter called the Bank), the partnership, through its managing partners, constituted a mortgage of the properties now in question, in favor of the Bank. The loan was to be repaid in 40 semi-annual instalments, the final one to fall due on April 30, 1915.'
Upon expiration of the term on June 30, 1901, the partnership was dissolved.
Several instalments being in arrears, the Bank on September 30, 1902, in virtue of an acceleration clause in the mortgage, instituted summary foreclosure proceedings in the District Court of Humacao. Service of demand for payment was made upon one of the original partners only, as binding on all the members and their successors We assume, as the insular courts have held, that such service was defective* though this conclusion is challenged by the Bank with considerable force of argument.
An auction sale, as decreed by the court, was held on January 22, 1903, but no bidder appeared. Pursuant to a further decree a second sale was held on March 17, 1903, based upon a reduction of 25% in the appraised value of the mortgaged properties. Again no bidder' appeared. ' Thereafter, on March 26, 1903, the District Court by order adjudicated the properties to the Bank. The adjudication was recorded in the Registry of Property on May 14, 1903, and the Bank was put into possession as owner.
On April 28, 1903, a suit was brought in the District Court of San Juan against the -Bank for a declaration that the above award of the properties to the Bank in the summary foreclosure proceedings was null and void, and for a decree "that matters be placed in the condition in which they were before the institution of the summary execution proceedings against the firm of Cintron Hermanos.” The plaintiffs in this suit were two of the original partners, and the successors of a third deceased partner. The fourth of the original partners did not appear as a party. Various technical points were alleged as grounds of invalidity of the foreclosure proceedings, but at this time the sufficiency of the service of the demand for payment was not attacked. These points were raised in a separate suit because under the local mortgage law the debtor is not a party in summary foreclosure proceedings. El Banco Territorial y Agrícola v. Cintron, 7 P.R.R. 194.
The District Court entered a decree setting aside the award. On appeal, the Supreme Court of Puerto Rico held that the second auction sale was invalid in that the sale was held in Guayama though the notice implied that it-would be held at Humacao, the regular seat of the District Court. On this ground alone, the Supreme Court in its order, dated June 24, 1905, annulled the summary foreclosure proceedings “from and after the date on which the second auction sale was held in Guayama on March 17, 1903, and orders that said proceeding be restored to the condition it had at that time.” Thus the court inferentially affirmed the regularity of the earlier steps in the foreclosure proceedings, including the service of the demand for payment. Cintron v. Banco Territorial y Agricola, 9 P.R.R. 220.
In compliance with the Supreme Court’s judgment, the District Court of Humacao reopened the summary foreclosure proceedings and ordered another auction sale. The sale was duly held on May 19, 1906, and the properties were adjudicated to the Bank for a total bid price of $47,000, no higher offer having been made by any other bidder. On the same day the marshal executed a deed to the Bank which was recorded in the Registry of Property. The marshal’s deed recites the order of the District Court, in compliance with the Supreme Court’s mandate, annulling everything done in the summary foreclosure proceedings “from and after the celebration of the second auction sale held in Guayama, the seventeenth of March, 1903” and directing that another auction sale be held. However, neither the marshal’s deed nor the corresponding entry in the Registry sets forth the specific steps taken by the Bank in serving the original demand for payment upon the debtor partnership. All the mesne conveyances are recorded, as is the deed of July 31, 1912, by which the Yabucoa Sugar Company, appellee herein, acquired title and under which it has remained in possession since that time. There is no suggestion that the appellee had actual notice of any defect in the original demand for payment. At no place in the records of the Registry does it appear how this demand was served. No question had been raised as to the sufficiency of the service. Indeed, it would have appeared to anyone examining the entries in the Registry that the Supreme Court had already approved the steps in the summary foreclosure proceedings up to the second auction sale. Cintron v. Banco Territorial y Agricola, 9 P.R.R. 220.
The present suit for revendication was filed on June 1, 1929. It is claimed that the summary foreclosure proceedings were invalid upon a ground never before advanced, namely, that the original demand for payment was defective because it was not served upon each of the partners. An amended complaint was filed March 1, 1932, in which “appeared for the first time in this lengthy proceeding, party Zoilo Cintron Cintron, through his heir Rene Cintron Parra.” (Zoilo had not appeared as a party in the earlier suit seeking annulment of the foreclosure proceedings. Cintron v. Banco Territorial y Agricola, 9 P.R.R. 220. Just why, we cannot make out.) In a lengthy opinion the District Court held that the amended complaint should be dismissed. Various reasons were assigned, including prescription and res judicata. On appeal, the judgment of the District Court was affirmed by the Supreme Court of Puerto Rico. The Supreme Court, while expressing an inclination to agree with all the grounds taken by the District Court, rested its opinion on res judicata, the only point extensively discussed in its opinion.
We think the judgment below should be affirmed. Without considering other defenses, we think it clear that, regardless of any defect that there may have been in the summary foreclosure proceedings by which the Bank acquired title, the Yabucoa Sugar Company has acquired an unassailable title by ordinary prescription, under the applicable provisions of the Civil Code of Puerto Rico.8
The two chief sections of the Code dealing with prescription of ownership in real property are §§ 1857 and 1859. Under § 1857, read in conjunction with § 1840, title to land by prescription results from possession “in good faith and under a proper (justo) title” for ten years as against persons present in Puerto Rico and for twenty years as against persons absent from Puerto Rico. Under § 1859 ownership of real property prescribes “by uninterrupted possessiqn of the same for thirty years without the necessity of title nor good faith.” Since less than thirty years had elapsed between the date of the marshal’s deed to the Bank in 1906 and the filing in 1929 of the original complaint in the case at bar, appellee cannot invoke § 1859.
But at the time of the original complaint, appellee had been in possession for over ten years, which was long enough for the acquisition of a prescriptive title under § 1857, if the other conditions were present, since the plaintiffs during that time have admittedly “always resided in the Island of Puerto Rico.”
Appellee’s possession has been “in the capacity of an owner, public, peaceful, and uninterrupted” (§ 1841).
Has this possession been “in good faith” ? This must be presumed, unless the adversary maintains the burden of showing bad faith (§ 364). We must take it on the record before us that appellee as possessor had the “belief that the person from whom he received the thing was the owner of the same, and could convey his title” (§ 1850); also, that appellee comes within § 363, describing a bona fide possessor as a “person who is not aware that there exists in his title or in the manner of acquiring it, any flaw invalidating the same.” It is true that appellee upon acquiring the land in 1912 was made aware by the entries in the Registry of Property that a predecessor in title had taken under an auction sale pursuant, to summary foreclosure proceedings ag'ainst Cintron Hermanos. But so far as the record disclosed, all the proceedings were regular. Good faith is not negatived under these circumstances by any doctrine of constructive notice charging appellee with knowledge of a “latent or occult” defect dehors the record. Ayllon v. Gonzalez, 28 P.R.R. 61. We thought otherwise in that case, 1 Cir., 288 F. 28, but were reversed in turn by the Supreme Court sub nom. Fernandez & Bros. v. Ayllon y Ojeda, 266 U.S. 144, 45 S.Ct. 52, 69 L.Ed. 209. To the same effect see Larracuenta v. Fabian, 56 D.P.R. 775. See also Arvelo v. Banco Territorial y Agricola, 25 P.R.R. 677, 693; Martorell v. J. Ochoa & Bro., 25 P.R.R. 707, 711, 712; Martorell v. J. Ochoa & Bro., 25 P.R.R. 731, 734.
Finally, has appellee been in possession under “a proper (justo) title” (§§ 1840, 1857), a “true and valid” title (§ 1853) ? As the court pointed out in Ayllon v. Gonzalez, 28 P.R.R. 61, 67: “Just title and good faith are intimately related and a just title arises generally where the transferee believes that the person from whom he takes is the true owner and there was nothing in the record or in the facts known to him to show the defect or to put him on inquiry.” The words “proper” and “true and valid” in the sections of the Code in question have never been read literally as meaning a perfect title, “as otherwise prescription would not be needed.” Fernandez & Bros. v. Ayllon y Ojeda, 266 U.S. 144, 146, 45 S.Ct. 52, 69 L.Ed. 209. See People of Porto Rico v. Livingston, 1 Cir., 47 F.2d 712, 717. In Martorell v. J. Ochoa & Bro., 25 P.R.R. 707, 711, 712, the court said:
“As regards color of title, section 1853 [§ 1852 of the 1930 ed.] expressly provides that it is understood to be that which legally suffices to transfer the ownership or property right, the prescription of which is in question. In order that the title may be colorable it is not necessary that it actually transfers the ownership or property right, but that it is sufficient to transfer it although it may contain a defect which invalidates it. And this is necessarily so, because if under the name of color of title, which the law requires for prescription, is meant only a title clothed with all the internal and external requisites necessary for the real and actual transfer of ownership, prescription would be superfluous as a means of acquiring ownership.”
Further, the court said in the same opinion (page 714 of 25 P.R.R.), discussing the meaning of “true and valid” in § 1853: “We cannot give to the word 'valid’ a meaning which would eliminate from our code the method of acquiring by ordinary prescription as would be the case if we should understand a valid title to be one clothed with all the internal and external requirements of the law.” In a companion case to the one just quoted, also entitled Martorell v. J. Ochoa & Bro., 25 P.R.R. 731, 734, 735, the court said:
“In so far as regards the colorable title for acquisition by prescription, which in the present case is the deed executed by Juan Roure Dalmau in favor of J. Ochoa & Brother, although it could not have conveyed to the firm the ownership of the property sued for because of the invalidity of the title of the vendor, yet inasmuch as the said deed, besides conforming to all the external requirements of law, constitutes in form a title conveying ownership, it is evident that it fulfils the requirements of sections 1853 and 1854 of the Revised Civil Code (§§ 1852 and 1853 of the 1930 ed.], because if it is required that the title relied on shall convey to the purchaser in fact and in law the ownership of the thing, there would be no need for him to set up the plea of prescription and this mode of acquisition, in so far as it relates to ordinary prescription, would be superfluous and would have to be eliminated from the methods of acquiring title under our laws as unnecessary and useless.”
Nor does ordinary prescription operate only in cases of voidable title, as distinguished from void title. In the present case, if the title acquired by the Bank through the marshal’s deed was voidable merely, the defect not appearing in the Registry, the subsequent deed to appellee as a bona fide purchaser in 1912 gave appellee an indefeasible title forthwith, without the necessity of awaiting the lapse of the statutory period for prescription. Cf. Arts. 33 and 34 of the Mortgage Law of Puerto Rico (Rev.Stat. Arts. 6717, 6718). But ordinary prescription, as provided in § 1857 of the Civil Code, operates in favor of a subsequent possessor in the position of the appellee, even though the marshal’s deed, because of extrinsic facts not appearing in the Registry, may have been void as between the Bank and Cintron Hermanos. See Martorell v. J. Ochoa & Bro., 25 P.R.R. 707, 712, 715.
In other words, “proper title” has been construed by the insular courts to mean merely that the record title must be clear; that the possessor must have “colorable title”. The matter in issue is peculiarly one of the local law of property, and we cannot 'say that the decisions of the insular courts construing the sections of the Civil Code dealing with prescription are clearly erroneous. Fernandez & Bros. v. Ayllon v Ojeda, 266 U.S. 144, 146, 45 S.Ct. 52, 69 L.Ed. 209.
Appellants rely heavily on Anaud v. Martinez, 40 P.R.R. 641, but this case is distinguishable, because there it appeared in the Registry that service of demand for payment in the' summary foreclosure proceedings had not been made upon the debtor nor upon the debtor’s attorney in fact nor upon a lessee in charge of the property; hence the subsequent purchaser having taken 'with notice was not a purchaser in good faith. We pointed that out when the Anaud case came here on appeal, sub nom. Cabo Rodriguez v. Anaud, 1 Cir., 54 F.2d 585, 587, 588. Furthermore, the Anaud case raised no question of prescription since the suit for revendication in that case had been brought within less than ten years after the invalid foreclosure sale. If certain expressions in Longpre v. Diaz, 237 U.S. 512, 35 S.Ct. 731, 59 L.Ed. 1080, may be taken as favoring the position of appellants in the case at bar, they must be considered as limited by the subsequent decision in Fernandez & Bros. v. Ojeda, 266 U.S. 144, 45 S.Ct. 52, 53, 69 L.Ed. 209, which explains the Longpre case as standing merely for the obvious proposition that “persons holding under a conveyance that was void upon the facts known to them could not be possessors in good faith.”
The judgment of the Supreme Court of Puerto Rico is affirmed, with costs to the appellee.
The opinion of the Supreme Court makes no comment upon the fact that partner Zoilo did not appear as a party in the previous litigation.
3 The following sections are quoted from, the Civil Code, 1930 Ed. The earlier edition of the Code (1902), which appears to be the one applicable in the case at bar, contained identical language though the section numbers were different.
“Section 363. — A bona fide possessor is deemed to be the person who is not aware that there exists in his title or in the manner of acquiring it, any flaw invalidating the same.
“A possessor in bad faith is deemed to be any person possessing in any case contrary to the aboye.
“Section 364. — Good faith is always presumed, and any person averring had faith on the part of a possessor, is bound to prove the same.”
“Section 1840. — For ordinary prescription of ownership and other property rights, it is necessary to possess things in good faith and under a proper title, during the time specified by law.
“Section 1841. — Possession mnst be in the capacity of an owner, public, peaceful, and uninterrupted.”
“Section 1850. — Good faith of the possessor consists in his belief that the person from whom he received the thing was the owner of the same, and could convey his title.
“Section 1851. — The conditions of good faith, required for possession in sections 363 and 364, Chapter I, Title Y, and in section 473, Article Second, Chapter I, Title VII, Second Book, of this Code, are equally necessary for the determination of said requisite in the prescription of ownership and of other property rights.
“Section 1852. — By a proper title is understood that which legally suffices to transfer the ownership or property right, the prescription of which is in question.
“Section 1853. — The title for prescription must he true and valid.
“Section 1854. — A proper title must be proven; it never can be presumed.”
“Section 1857. — Ownership and other property rights in real property shall prescribe by possession for ten years as to persons present, and for twenty years with regard to' those absent, with good faith and with a proper title.”
“Section 1859. — Ownership and other property rights in real property shall also prescribe by uninterrupted possession of the same for thirty years without the necessity of title nor good faith and without distinction between present and absent persons, with the exception mentioned in section 475, second article, Chapter I, Title VII, Second Book, of this Code.”
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "agriculture". What subcategory of business best describes this litigant?
A. single family farm
B. commercial farm, agri-business
C. farm - other
D. unclear
Answer:
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sc_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
DILLINGHAM v. UNITED STATES
No. 74-6738.
Decided December 1, 1975
Per Curiam.
An interval of 22 months elapsed between petitioner’s arrest and indictment, and a further period of 12 months between his indictment and trial, upon charges of automobile theft in violation of 18 U. S. C. §§ 371, 2312, and 2313. The District Court for the Northern District of Georgia denied petitioner’s motions — made immediately after arraignment and posttrial — to dismiss the indictment on the ground that petitioner had been denied a speedy trial in violation of the Sixth Amendment. The Court of Appeals for the Fifth Circuit affirmed, holding that under United States v. Marion, 404 U. S. 307 (1971), the 22-month “pre-indictment delay ... is not to be counted for the purposes of a Sixth Amendment motion absent a showing of actual prejudice.” 502 F. 2d 1233, 1235 (1974). This reading of Marion was incorrect. Marion presented the question whether in assessing a denial of speedy trial claim, there was to be counted a delay between the end of the criminal scheme charged and the indictment of a suspect not arrested or otherwise charged previous to the indictment. The Court held: “On its face, the protection of the [Sixth] Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time.” 404 U. S., at 313. In contrast, the Government constituted petitioner an “accused” when it arrested him and thereby commenced its prosecution of him. Marion made this clear, id., at 320-321, where the Court stated:
“To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, ánd create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina, [386 U. S. 213 (1967)]; see also Smith v. Hooey, 393 U. S. 374, 377-378 (1969). So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.
“Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge.”
See also Barker v. Wingo, 407 U. S. 514, 519-520, 532-533 (1972).
Petitioner’s motion to proceed in forma pauperis and the petition for certiorari are granted. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
The Chief Justice dissents.
The Memorandum for the United States in Opposition, p. 4, states that “Marion appears to leave little doubt . . . that [the Court] believed that the policies that inform the right to a speedy trial reach beyond the indictment stage of criminal proceedings and that the right consequently attaches either at the point at which a person is arrested and held to answer on .a criminal charge or when he is formally charged by indictment or information, whichever occurs earlier Accord, United States v. Macino, 486 F. 2d 750 (CA7 1973); United States v. Cabral, 475 F. 2d 715 (CA1 1973); Edmaiston v. Neil, 452 F. 2d 494 (CA6 1971).
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
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.
MISSOURI et al. v. JENKINS, by her friend, AGYEI, et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 88-64.
Argued February 21, 1989
Decided June 19, 1989
Bruce Farmer, Assistant Attorney General of Missouri, argued the cause for petitioners. With him on the brief were William L. Webster, Attorney General, Terry Allen, Deputy Attorney General, and Michael L. Boicourt and Bart A. Ma-tanic, Assistant Attorneys General.
Jay Topkis argued the cause for respondents. With him on the brief were Julius LeVonne Chambers, Charles Stephen Ralston, Arthur A. Benson II, Russell E. Lovell II, and Theodore M. Shaw.
John A. DeVault III filed a brief for the National Association of Legal Assistants, Inc., as amicus curiae urging affirmance.
Justice Brennan
delivered the opinion of the Court.
This is the attorney’s fee aftermath of major school desegregation litigation in Kansas City, Missouri. We granted certiorari, 488 U. S. 888 (1988), to resolve two questions relating to fees litigation under 90 Stat. 2641, as amended, 42 U. S. C. § 1988. First, does the Eleventh Amendment prohibit enhancement of a fee award against a State to compensate for delay in payment? Second, should the fee award compensate the work of paralegals and law clerks by applying the market rate for their work?
I
This litigation began in 1977 as a suit by the Kansas City Missouri School District (KCMSD), the school board, and the children of two school board members, against the State of Missouri and other defendants. The plaintiffs alleged that the State, surrounding school districts, and various federal agencies had caused and perpetuated a system of racial segregation in the schools of the Kansas City metropolitan area. They sought various desegregation remedies. KCMSD was subsequently realigned as a nominal defendant, and a class of present and future KCMSD students was certified as plaintiffs. After lengthy proceedings, including a trial that lasted 754 months during 1983 and 1984, the District Court found the State of Missouri and KCMSD liable, while dismissing the suburban school districts and the federal defendants. It ordered various intradistrict remedies, to be paid for by the State and KCMSD, including $260 million in capital improvements and a magnet-school plan costing over $200 million. See Jenkins v. Missouri, 807 F. 2d 657 (CA8 1986) (en banc), cert. denied, 484 U. S. 816 (1987); Jenkins v. Missouri, 855 F. 2d 1295 (CA8 1988), cert. granted, 490 U. S. 1034 (1989).
The plaintiff class has been represented, since 1979, by Kansas City lawyer Arthur Benson and, since 1982, by the NAACP Legal Defense and Educational Fund, Inc. (LDF). Benson and the LDF requested attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. § 1988. Benson and his associates had devoted 10,875 attorney hours to the litigation, as well as 8,108 hours of paralegal and law clerk time. For the LDF the corresponding figures were 10,854 hours for attorneys and 15,517 hours for paralegals and law clerks. Their fee applications deleted from these totals 3,628 attorney hours and 7,046 paralegal hours allocable to unsuccessful claims against the suburban school districts. With additions for postjudgment monitoring and for preparation of the fee application, the District Court awarded Benson a total of approximately $1.7 million and the LDF $2.3 million. App. to Pet. for Cert. A22-A43.
In calculating the hourly rate for Benson’s fees the court noted that the market rate in Kansas City for attorneys of Benson’s qualifications was in the range of $125 to $175 per hour, and found that “Mr. Benson’s rate would fall at the higher end of this range based upon his expertise in the area of civil rights.” Id., at A26. It calculated his fees on the basis of an even higher hourly rate of $200, however, because of three additional factors: the preclusion of other employment, the undesirability of the case, and the delay in payment for Benson’s services. Id., at A26-A27. The court also took account of the delay in payment in setting the rates for several of Benson’s associates by using current market rates rather than those applicable at the time the services were rendered. Id., at A28-A30. For the same reason, it calculated the fees for the LDF attorneys at current market rates. Id., at A33.
Both Benson and the LDF employed numerous paralegals, law clerks (generally law students working part time), and recent law graduates in this litigation. The court awarded fees for their work based on Kansas City market rates for those categories. As in the case of the attorneys, it used current rather than historic market rates in order to compensate for the delay in payment. It therefore awarded fees based on hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates. Id., at A29-A31, A34. The Court of Appeals affirmed in all respects. 838 F. 2d 260 (CA8 1988).
II
Our grant of certiorari extends to two issues raised by the State of Missouri. Missouri first contends that a State cannot, consistent with the principle of sovereign immunity this Court has found embodied in the Eleventh Amendment, be compelled to pay an attorney’s fee enhanced to compensate for delay in payment. This question requires us to examine the intersection of two of our precedents, Hutto v. Finney, 437 U. S. 678 (1978), and Library of Congress v. Shaw, 478 U. S. 310 (1986).
In Hutto v. Finney, the lower courts had awarded attorney’s fees against the State of Arkansas, in part pursuant to §1988, in connection with litigation over the conditions of confinement in that State’s prisons. The State contended that any such award was subject to the Eleventh Amendment’s constraints on actions for damages payable from a State’s treasury. We relied, in rejecting that contention, on the distinction drawn in our earlier cases between “retroactive monetary relief” and “prospective injunctive relief.” See Edelman v. Jordan, 415 U. S. 651 (1974); Ex parte Young, 209 U. S. 123 (1908). Attorney’s fees, we held, belonged to the latter category, because they constituted reimbursement of “expenses incurred in litigation seeking only prospective relief,” rather than “retroactive liability for prelitigation conduct.” Hutto, 437 U. S., at 695; see also id.,. at 690. We explained: “Unlike ordinary ‘retroactive’ relief such as damages or restitution, an award of costs does not compensate the plaintiff for the injury that first brought him into court. Instead, the award reimburses him for a portion of the expenses he incurred in seeking prospective relief.” Id., at 695, n. 24. Section 1988, we noted, fit easily into the longstanding practice of awarding “costs” against States, for the statute imposed the award of attorney’s fees “as part of the costs.” Id., at 695-696, citing Fairmont Creamery Co. v. Minnesota, 275 U. S. 70 (1927).
After Hutto, therefore, it must be accepted as settled that an award of attorney’s fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment. And if the principle of making such an award is beyond the reach of the Eleventh Amendment, the same must also be true for the question of how a “reasonable attorney’s fee” is to be calculated. See Hutto, supra, at 696-697.
Missouri contends, however, that the principle enunciated in Hutto has been undermined by subsequent decisions of this Court that require Congress to “express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself.” Atascadero State Hospital v. Scanlon, 473 U. S. 234, 243 (1985); Welch v. Texas Dept, of Highways and Public Transportation, 483 U. S. 468 (1987). See also Dellmuth v. Muth, ante, p. 223; Pennsylvania v. Union Gas Co., ante, p. 1. The flaw in this argument lies in its misreading of the holding of Hutto. It is true that in Hutto we noted that Congress could, in the exercise of its enforcement power under § 5 of the Fourteenth Amendment, set aside the States’ immunity from retroactive damages, 437 U. S., at 693, citing Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), and that Congress intended to do so in enacting § 1988, 437 U. S., at 693-694. But we also made clear that the application of § 1988 to the States did not depend on congressional abrogation of the States’ immunity. We did so in rejecting precisely the “clear statement” argument that Missouri now suggests has undermined Hutto. Arkansas had argued that § 1988 did not plainly abrogate the States’ immunity; citing Employees v. Missouri Dept, of Public Health and Welfare, 411 U. S. 279 (1973), and Edelman v. Jordan, supra, the State contended that “retroactive liability” could not be imposed on the States “in the absence of an extraordinarily explicit statutory mandate.” Hutto, 437 U. S., at 695. We responded as follows: “[Tjhese cases [Employees and Edelman] concern retroactive liability for prelitigation conduct rather than expenses incurred in litigation seeking only prospective relief. The Act imposes attorney’s fees ‘as part of the costs.’ Costs have traditionally been awarded without regard for the States’ Eleventh Amendment immunity.” Ibid.
The holding of Hutto, therefore, was not just that Congress had spoken sufficiently clearly to overcome Eleventh Amendment immunity in enacting § 1988, but rather that the Eleventh Amendment did not apply to an award of attorney’s fees ancillary to a grant of prospective relief. See Maine v. Thiboutot, 448 U. S. 1, 9, n. 7 (1980). That holding is unaffected by our subsequent jurisprudence concerning the degree of clarity with which Congress must speak in order to override Eleventh Amendment immunity, and we reaffirm it today.
Missouri’s other line of argument is based on our decision in Library of Congress v. Shaw, supra. Shaw involved an application of the longstanding “no-interest rule,” under which interest cannot be awarded against the United States unless it has expressly waived its sovereign immunity. We held that while Congress, in making the Federal Government a potential defendant under Title VII of the Civil Rights Act of 1964, had waived the United States’ immunity from suit and from costs including reasonable attorney’s fees, it had not waived the Federal Government’s traditional immunity from any award of interest. We thus held impermissible a 30 percent increase in the “lodestar” fee to compensate for delay in payment. Because we refused to find in the language of Title VII a waiver of the United States’ immunity from interest, Missouri argues, we should likewise conclude that § 1988 is not sufficiently explicit to constitute an abrogation of the States’ immunity under the Eleventh Amendment in regard to any award of interest.
The answer to this contention is already clear from what we have said about Hutto v. Finney. Since, as we held in Hutto, the Eleventh Amendment does not bar an award of attorney’s fees ancillary to a grant of prospective relief, our holding in Shaw has no application, even by analogy. There is no need in this case to determine whether Congress has spoken sufficiently clearly to meet a “clear statement” requirement, and it is therefore irrelevant whether the Eleventh Amendment standard should be, as Missouri contends, as stringent as the one we applied for purposes of the no-interest rule in Shaw. Rather, the issue here — whether the “reasonable attorney’s fee” provided for in § 1988 should be calculated in such a manner as to include an enhancement, where appropriate, for delay in payment — is a straightforward matter of statutory interpretation. For this question, it is of no relevance whether the party against which fees are awarded is a State. The question is what Congress intended — not whether it manifested “the clear affirmative intent ... to waive the sovereign’s immunity.” Shaw, 478 U. S., at 321.
This question is not a difficult one. We have previously explained, albeit in dicta, why an enhancement for delay in payment is, where appropriate, part of a “reasonable attorney’s fee.” In Pennsylvania v. Delaware Valley Citizens’ Council, 483 U. S. 711 (1987), we rejected an argument that a prevailing party was entitled to a fee augmentation to compensate for the risk of nonpayment. But we took care to distinguish that risk from the factor of delay:
“First is the matter of delay. When plaintiffs’ entitlement to attorney’s fees depends on success, their lawyers are not paid until a favorable decision finally eventuates, which may be years later .... Meanwhile, their expenses of doing business continue and must be met. In setting fees for prevailing counsel, the courts have regularly recognized the delay factor, either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value. See, e. g., Sierra Club v. EPA, 248 U. S. App. D. C. 107, 120-121, 769 F. 2d 796, 809-810 (1986); Louisville Black Police Officers Organization, Inc. v. Louisville, 700 F. 2d 268, 276, 281 (CA6 1983). Although delay and the risk of nonpayment are often mentioned in the same breath, adjusting for the former is a distinct issue .... We do not suggest . . . that adjustments for delay are inconsistent with the typical fee-shifting statute.” Id., at 716.
The same conclusion is appropriate under § 1988. Our cases have repeatedly stressed that attorney’s fees awarded under this statute are to be based on market rates for the services rendered. See, e. g., Blanchard v. Bergeron, 489 U. S. 87 (1989); Riverside v. Rivera, 477 U. S. 561 (1986); Blum v. Stenson, 465 U. S. 886 (1984). Clearly, compensation received several years after the services were rendered — -as it frequently is in complex civil rights litigation — is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings. We agree, therefore, that an appropriate adjustment for delay in payment— whether by the application of current rather than historic hourly rates or otherwise—is within the contemplation of the statute.
To summarize: We reaffirm our holding in Hutto v. Finney that the Eleventh Amendment has no application to an award of attorney’s fees, ancillary to a grant of prospective relief, against a State. It follows that the same is true for the calculation of the amount of the fee. An adjustment for delay in payment is, we hold, an appropriate factor in the determination of what constitutes a reasonable attorney’s fee under § 1988. An award against a State of a fee that includes such an enhancement for delay is not, therefore, barred by the Eleventh Amendment.
Ill
Missouri’s second contention is that the District Court erred in compensating the work of law clerks and paralegals (hereinafter collectively “paralegals”) at the market rates for their services, rather than at their cost to the attorney. While Missouri agrees that compensation for the cost of these personnel should be included in the fee award, it suggests that an hourly rate of $15—which it argued below corresponded to their salaries, benefits, and overhead—would be appropriate, rather than the market rates of $35 to $50. According to Missouri, § 1988 does not authorize billing paralegals’ hours at market rates, and doing so produces a “windfall” for the attorney.
We begin with the statutory language, which provides simply for “a reasonable attorney’s fee as part of the costs.” 42 U. S. C. § 1988. Clearly, a “reasonable attorney’s fee” cannot have been meant to compensate only work performed personally by members of the bar. Rather, the term must refer to a reasonable fee for the work product of an attorney. Thus, the fee must take into account the work not only of attorneys, but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profit. The parties have suggested no reason why the work of paralegals should not be similarly compensated, nor can we think of any. We thus take as our starting point the self-evident proposition that the “reasonable attorney’s fee” provided for by statute should compensate the work of paralegals, as well as that of attorneys. The more difficult question is how the work of paralegals is to be valuated in calculating the overall attorney’s fee.
The statute specifies a “reasonable” fee for the attorney’s work product. In determining how other elements of the attorney’s fee are to be calculated, we have consistently looked to the marketplace as our guide to what is “reasonable.” In Blum v. Stenson, 465 U. S. 886 (1984), for example, we rejected an argument that attorney’s fees for nonprofit legal service organizations should be based on cost. We said: “The statute and legislative history establish that ‘reasonable fees’ under § 1988 are to be calculated according to the prevailing market rates in the relevant community . . . Id., at 895. See also, e. g., Delaware Valley, 483 U. S., at 732 (O’Connor, J., concurring) (controlling question concerning contingency enhancements is “how the market in a community compensates for contingency”); Rivera, 477 U. S., at 591 (Rehnquist, J., dissenting) (reasonableness of fee must be determined “in light of both the traditional billing practices in the profession, and the fundamental principle that the award of a ‘reasonable’ attorney’s fee under § 1988 means a fee that would have been deemed reasonable if billed to affluent plaintiffs by their own attorneys”). A reasonable attorney’s fee under § 1988 is one calculated on the basis of rates and practices prevailing in the relevant market, i. e., “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation,” Blum, supra, at 896, n. 11, and one that grants the successful civil rights plaintiff a “fully compensatory fee,” Hensley v. Eckerhart, 461 U. S. 424, 435 (1983), comparable to what “is traditional with attorneys compensated by a fee-paying client.” S. Rep. No. 94-1011, p. 6 (1976).
If an attorney’s fee awarded under § 1988 is to yield the same level of compensation that would be available from the market, the “increasingly widespread custom of separately billing for the services of paralegals and law students who serve as clerks,” Ramos v. Lamm, 713 F. 2d 546, 558 (CA10 1983), must be taken into account. All else being equal, the hourly fee charged by an attorney whose rates include paralegal work in her hourly fee, or who bills separately for the work of paralegals at cost, will be higher than the hourly fee charged by an attorney competing in the same market who bills separately for the work of paralegals at “market rates.” In other words, the prevailing “market rate” for attorney time is not independent of the manner in which paralegal time is accounted for. Thus, if the prevailing practice in a given community were to bill paralegal time separately at market rates, fees awarded the attorney at market rates for attorney time would not be fully compensatory if the court refused to compensate hours billed by paralegals or did so only at “cost.” Similarly, the fee awarded would be too high if the court accepted separate billing for paralegal hours in a market where that was not the custom.
We reject the argument that compensation for paralegals at rates above “cost” would yield a “windfall” for the prevailing attorney. Neither petitioners nor anyone else, to our knowledge, has ever suggested that the hourly rate applied to the work of an associate attorney in a law firm creates a windfall for the firm’s partners or is otherwise improper under § 1988, merely because it exceeds the cost of the attorney’s services. If the fees are consistent with market rates and practices, the “windfall” argument has no more force with regard to paralegals than it does for associates. And it would hardly accord with Congress’ intent to provide a “fully compensatory fee” if the prevailing plaintiff’s attorney in a civil rights lawsuit were not permitted to bill separately for paralegals, while the defense attorney in the same litigation was able to take advantage of the prevailing practice and obtain market rates for such work. Yet that is precisely the result sought in this case by the State of Missouri, which appears to have paid its own outside counsel for the work of paralegals at the hourly rate of $35. Record 2696, 2699.
Nothing in § 1988 requires that the work of paralegals invariably be billed separately. If it is the practice in the relevant market not to do so, or to bill the work of paralegals only at cost, that is all that § 1988 requires. Where, however, the prevailing practice is to bill paralegal work at market rates, treating civil rights lawyers’ fee requests in the same way is not only permitted by § 1988, but also makes economic sense. By encouraging the use of lower cost paralegals rather than attorneys wherever possible, permitting market-rate billing of paralegal hours “encourages cost-effective delivery of legal services and, by reducing the spiraling cost of civil rights litigation, furthers the policies underlying civil rights statutes.” Cameo Convalescent Center, Inc. v. Senn, 738 F. 2d 836, 846 (CA7 1984), cert. denied, 469 U. S. 1106 (1985).
Such separate billing appears to be the practice in most communities today. In the present case, Missouri concedes that “the local market typically bills separately for paralegal services,” Tr. of Oral Arg. 14, and the District Court found that the requested hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates were the prevailing rates for such services in the Kansas City area. App. to Pet. for Cert. A29, A31, A34. Under these circumstances, the court’s decision to award separate compensation at these rates was fully in accord- with § 1988.
I — I
The courts below correctly granted a fee enhancement to compensate for delay in payment and approved compensation of paralegals and law clerks at market rates. The judgment of the Court of Appeals is therefore
Affirmed.
Justice Marshall took no part in the consideration or decision of this case.
Section 1988 provides in relevant part: “In any action or proceeding to enforce a provision of sections 1981, 1982,1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U. S. C. § 1681 et seq.], or title VI of the Civil Rights Act of 1964 [42 U. S. C. §2000d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
The holding of the Court of Appeals on this point, 838 F. 2d, at 265-266, is in conflict with the resolution of the same question in Rogers v. Okin, 821 F. 2d 22, 26-28 (CA1 1987), cert. denied sub nonz. Commissioner, Massachusetts Dept, of Mental Health v. Rogers, 484 U. S. 1010 (1988).
Our opinion in Shaiu does, to be sure, contain some language that, if read in isolation, might suggest a different result in this case. Most significantly, we equated compensation for delay with prejudgment interest, and observed that “[p]rejudgment interest... is considered as damages, not a component of ‘costs.’ . . . Indeed, the term ‘costs’ has never been understood to include any interest component.” Library of Congress v. Shaiu, 478 U. S. 310, 321 (1986). These observations, however, cannot be divorced from the context of the special “no-interest rule” that was at issue in Shaw. That rule, which is applicable to the immunity of the United States and is therefore not at issue here, provides an “added gloss of strictness,” id., at 318, only where the United States’ liability for interest is at issue. Our inclusion of compensation for delay within the definition of prejudgment interest in Shaiu must be understood in light of this broad proscription of interest awards against the United States. Shaw thus does not represent a general-purpose definition of compensation for delay that governs here. Outside the context of the “no-interest rule” of federal immunity, we see no reason why compensation for delay cannot be included within § 1988 attorney’s fee awards, which Hutto held to be “costs” not subject to Eleventh Amendment strictures.
We cannot share Justice O’Connor’s view that the two cases she cites, post, at 293, demonstrate the existence of an equivalent rule relating to state immunity that embodies the same ultrastrict rule of construction for interest awards that has grown up around the federal no-interest rule. Cf. Shaiu, supra, at 314-317 (discussing historical development of the federal no-interest rule).
In Shaio, which dealt with the sovereign immunity of the Federal Government, there was of course no prospective-retrospective distinction as there is when, as in Hutto and the present case, it is the Eleventh Amendment immunity of a State that is at issue.
Delaware Valley was decided under § 304(d) of the Clean Air Act, 42 U. S. C. § 7604(d). We looked for guidance, however, to § 1988 and our cases construing it. Pennsylvania v. Delaware Valley Citizens’ Council, 483 U. S. 711, 713, n. 1 (1987).
The Courts of Appeals have taken a variety of positions on this issue. Most permit separate billing of paralegal time. See, e. g., Save Our Cumberland Mountains, Inc. v. Hodel, 263 U. S. App. D. C. 409, 420, n. 7, 826 F. 2d 43, 54, n. 7 (1987), vacated in part on other grounds, 273 U. S. App. D. C. 78, 857 F. 2d 1516 (1988) (en banc); Jacobs v. Mancuso, 825 F. 2d 559, 563, and n 6 (CA1 1987) (collecting cases); Spanish Action Committee of Chicago v. Chicago, 811 F. 2d 1129, 1138 (CA7 1987); Ramos v. Lamm, 713 F. 2d 546, 558-559 (CA10 1983); Richardson v. Byrd, 709 F. 2d 1016, 1023 (CA5), cert. denied sub nom. Dallas County Commissioners Court v. Richardson, 464 U. S. 1009 (1983). See also Riverside v. Rivera, 477 U. S. 561, 566, n. 2 (1986) (noting lower court approval of hourly rate for law clerks). Some courts, on the other hand, have considered paralegal work “out-of-pocket expense,” recoverable only at cost to the attorney. See, e. g., Northcross v. Board of Education of Memphis City Schools, 611 F. 2d 624, 639 (CA6 1979), cert. denied, 447 U. S. 911 (1980); Thornberry v. Delta Air Lines, Inc., 676 F. 2d 1240, 1244 (CA9 1982), vacated, 461 U. S. 952 (1983). At least one Court of Appeals has refused to permit any recovery of paralegal expense apart from the attorney’s hourly fee. Abrams v. Baylor College of Medicine, 805 F. 2d 528, 535 (CA5 1986).
This delay, coupled with the fact that, as we recognized in Delaivare Valley, the attorney’s expenses are not deferred pending completion of the litigation, can cause considerable hardship. The present case provides an illustration. During a period of nearly three years, the demands of this case precluded attorney Benson from accepting other employment. In order to pay his staff and meet other operating expenses, he was obliged to borrow $633,000. As of January 1987, he had paid over $113,000 in interest on this debt, and was continuing to borrow to meet interest payments. Record 2336-2339; Tr. 130-131. The LDF, for its part, incurred deficits of $700,000 in 1983 and over $1 million in 1984, largely because of this case. Tr. 46. If no compensation were provided for the delay in payment, the prospect of such hardship could well deter otherwise willing attorneys from accepting complex civil rights cases that might offer great benefit to society at large; this result would work to defeat Congress’ purpose in enacting § 1988 of “encourag[ing] the enforcement of federal law through lawsuits filed by private persons.” Delaware Valley, supra, at 737 (Blackmun, J., dissenting).
We note also that we have recognized the availability of interim fee awards under § 1988 when a litigant becomes a prevailing party on one issue in the course of the litigation. Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 791-792 (1989). In economic terms, such an interim award does not differ from an enhancement for delay in payment.
The attorney who bills separately for paralegal time is merely distributing her costs and profit margin among the hourly fees of other members of her staff, rather than concentrating them in the fee she sets for her own time.
A variant of Missouri’s “windfall” argument is the following: “If paralegal expense is reimbursed at a rate many times the actual cost, will attorneys next try to bill separately — and at a profit — for such items as secretarial time, paper clips, electricity, and other expenses?” Reply Brief for Petitioners 15-16. The answer to this question is, of course, that attorneys seeking fees under § 1988 would have no basis for requesting separate compensation of such expenses unless this were the prevailing practice in the local community. The safeguard against the billing at a profit of secretarial services and paper clips is the discipline of the market.
It has frequently been recognized in the lower courts that paralegals are capable of carrying out many tasks, under the supervision of an attorney, that might otherwise be performed by a lawyer and billed at a higher rate. Such work might include, for example, factual investigation, including locating and interviewing witnesses; assistance with depositions, interrogatories, and document production; compilation of statistical and financial data; checking legal citations; and drafting correspondence. Much such work lies in a gray area of tasks that might appropriately be performed either by an attorney or a paralegal. To the extent that fee applicants under § 1988 are not permitted to bill for the work of paralegals at market rates, it would not be surprising to see a greater amount of such work performed by attorneys themselves, thus increasing the overall cost of litigation.
Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them. What the court in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 717 (CA5 1974), said in regard to the work of attorneys is applicable by analogy to paralegals: “It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it.”
Amicus National Association of Legal Assistants reports that 77 percent of 1,800 legal assistants responding to a survey of the association’s membership stated that their law firms charged clients for paralegal work on an hourly billing basis. Brief for National Association of Legal Assistants as Amicus Curiae 11.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
WABASH OIL & GAS ASS’N v. COMMISSIONER OF INTERNAL REVENUE.
No. 4194.
Circuit Court of Appeals, First Circuit.
April 3, 1947.
Writ of Certiorari Denied June 9, 1947.
See 07 S.Ct. 1533.
Edmund A. Whitman, of Boston, Mass., (Philip Nichols, of Boston, Mass., on the brief), for petitioner.
Carlton Fox, Sp. Asst, to the Atty. Gen. (Sewall Key, Acting Asst. Atty. Gen., and Robert N. Anderson and Muriel S. Paul, Sp. Assts. to the Atty. Gen., on the brief), for Comissioner of Internal Revenue.
Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
This petition for review of a decision of the Tax Court of the United States presents but a single question. It is whether during the calendar year 1941 the petitioning taxpayer, although an unincorporated association, was nevertheless taxable as a corporation under § 3797 of the Internal Revenue Code. 26 U.S.C.A. Int.Rev.Code, § 3797.
The facts are fully set out in conjunction with the opinion of the Tax Court reported in 6 T.C. 542. We can state them more briefly here.
During the summer of 1940 one Carey, of Grayville, Illinois, and one Patton of Newton, Massachusetts, who had long been associated in the lumber milling business in Grayville, Patton being an inactive partner, solicited their friends and relatives for subscriptions (they raised approximately $19,000) to finance a venture in a newly discovered oil bearing area near Grayville. With the money so raised they obtained an oil and gas lease in the name of Patton as lessee on a tract of land in the area, and, neither having had any experience in the oil business, they employed an experienced oil operator to take over the property and drill a well on it. This well began to produce early in December 1940, and thereupon Carey purchased necessary supplies and equipment with money sent him by Patton and arranged for the sale of the entire oil production.
There was no written plan of organization prior to the time when the well was brought in. Soon thereafter, however, (December 23, 1940) “Articles of Agreement” were prepared and executed by all the subscribers.
In these Articles it is first set out that the subscribers, who are listed with the amounts of their subscriptions, had provided the consideration for the oil and gas lease taken in Patton’s name and had also provided the funds required for developing the leased property, and then Patton acknowledged and agreed that he “is, and has been, the agent” of the subscribers “in negotiating and securing” the lease and “in the development thereunder” ; that “he holds said lease as agent of, and for the benefit of” the subscribers and “will execute such assignments and agreements and do such acts m connection with said lease and the developments thereunder as may be directed by two-thirds in interest of the subscribers hereto.”
Following this the subscribers agree that Patton, Carey, and one Hall of Wellesley, Massachusetts, are to act “as agents and managers of the business of developing the property and marketing the oil, gas and other incidental products to be conducted under said lease under the trade name of the Wabash Oil and Gas Association”, and furthermore that they shall continue so to serve until their successors are appointed as thereafter set forth, and shall receive such compensation for their services as they may unanimously agree upon. Next it is provided that Patton is to act as treasurer of the business, Carey as superintendent of its active operations, and Hall in an advisory capacity with final power to decide any difference of opinion which may arise between the other two. The subscribers then agree that “These three shall have full power to conduct the business with all the powers that we should have if personally present and active”, including among other specifically enumerated powers, the power to borrow money and pledge or mortgage the “lease or other assets of the business as security therefor.”
The Articles of Agreement continue with provisions requiring the agents and managers to keep open books of account and to make quarterly distribution of the net earnings of the business to the subscribers in proportion to their respective financial interests, subject, however, to the managers’ power to reserve such portion of net earnings as may in their judgment be needed for working capital.
Provisions follow to the effect that should Patton die, resign, or for any reason become unable to act, he, or his personal representative, will assign the lease to any person named by the other two agents; that a majority in interest of the subscribers may remove and also replace any agent; that written approval of two-thirds in interest of the subscribers is required to authorize the agents to sell either the leasehold or the equipment purchased for use in the business; that in every contract order or obligation entered into by the agents on behalf of the Association it shall be stipulated that the other contracting party “shall look only to the leasehold and property Used in said business for payment” and that neither the agents, the subscribers nor their successors shall be personally liable therefor; and that any subscriber may sell his interest provided only that he first give the agents an opportunity to buy that interest for the benefit .of the other subscribers. The Articles conclude with the provision:
“This agreement shall continue during the term of said lease and no one of the parties hereto shall be entitled to any dissolution or termination of this agreement, but on the death or bankruptcy of any one of them, the personal representatives or the trustee in bankruptcy, as the case may be, shall succeed to the interest.”
During the year 1941 the Association had no office, held no meetings, made ño distribution of net earnings, and, other than an unsigned copy of the Agreement, gave no certificate • or evidence of ownership to any of the subscribers.
■ The petitioning association filed its income tax return for the year involved as a partnership. The Commissioner, however, determined a deficiency on the ground that although an association it was “includible in the definition of a ‘corporation’ as prescribed by § 3797 (a) (3) of the Internal Revenue Code.” On appeal the Tax Court, concluding "that petitioner more closely resembled a corporation than a partnership or joint venture”, affirmed the Commissioner and the taxpayer thereupon brought this petition for review.
■ In § 3797 of the Internal Revenue Code Congress . made its own classification of business organizations for the purpose of taxation. And in doing so.it saw fit to put “associations” in the same category with “corporations” as technically defined in the law. This “including of associations with corporations”, the Supreme Court said in Morrissey v. Commissioner, 296 U.S. 344, 357, 56 S.Ct. 289, 295, 80 L.Ed. 263, “implies resemblance; but it is resemblance and not identity.” The question in this case, therefore, is whether the salient features of the organism created by the subscribers as the medium for carrying on their business venture, which they labeled Wabash Oil & Gas Association, make it analogous to a conventional corporation.
There seems to be some divergence of view among the circuits as to the nature of this question. In the Fifth Circuit it was held even before the decision in Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, that the question was one of fact (Commissioner v. Horseshoe Lease Syndicate, 1940, 110 F.2d 748, certiorari denied 311 U.S. 666, 61 S.Ct. 24, 85 L. Ed. 427; Commissioner v. Rector & Davidson, 1940, 111 F.2d 332, certiorari denied 311 U.S. 672, 61 S.Ct. 33, 85 L.Ed. 432; Del Mar Addition v. Commissioner, 1940, 113 F.2d 410) but in the Sixth and Ninth Circuits it seems to have been assumed without discussion that the question was one of law. Commissioner v. Fortney Oil Co., 6 Cir., 1942, 125 F.2d 995; Helm & Smith Syndicate v. Commissioner, 9 Cir., 1943, 136 F.2d 440. See also Nashville Trust Co. v. Cotros, 6 Cir., 1941, 120 F. 2d 157. In the instant case, however, we see no necessity to consider this problem because the Association in every respect meets the test of resemblance to a corporate form of organization established in the Morrissey case, supra, and in the cases decided with it. Swanson v. Commissioner, 296 U.S. 362, 56 S.Ct. 283, 80 L.Ed. 273; Helvering v. Combs, 296 U.S. 365, 56 S.Ct. 287, 80 L.Ed. 275; Helvering v. Coleman-Gilbert Associates, 296 U.S. 369, 56 S.Ct. 285, 80 L.Ed. 278.
In the first place the subscribers associated together in a joint enterprise for the transaction of a business from which they hoped to realize profit, and in the second place the medium they chose for carrying on their enterprise substantially resembled a corporation in its organization. That is to say, the Articles of Agreement secured centralized management; title to the property embarked in the undertaking, as to the lease, in an individual with provision for his succession, and, as to the equipment, in a board of three “managers and agents” with provision for their succession; security from termination of the enterprise by reason of the death of any beneficial owner; facility of transfer of the beneficial interests without affecting the continuity of the enterprise, and limitation of' the personal liability of the subscribers. See .7 A Mertens, Law of Federal Income Taxation (1943) § 43.14. The fact that no formal certificates of ownership were issued is unimportant. Nashville Trust Co. v. Cotros, supra, 120 F.2d at page 159; Commissioner v. Fortney Oil Co., supra, 125 F.2d at page 998.
Having all the essential characteristics of a corporation there is no room for any classification of the Association except as a corporation within the meaning of § 3797 of the Internal Revenue Code.
The decision of the Tax Court is af.firmed.
“Definitions
“ (a) When used in this title, where not ■ otherwise distinctly expressed or manifestly incompatible with the intent thereof—
“(1) Person.
“The term ‘person’ sjiall bo construed to mean and include an individual, a trust, estate, partnership, company, or corporation.
“(2) Partnership and partner.
“Tho term ‘partnership’ includes a syndicate, group, pool, joint venture, or other unincorporated organization, through or by means of which any business, financial operation, or venture is carried on, and which is not, within the meaning of this title, a trust or estate or a corporation ; and the term ‘partner’ includes a member in such a syndicate, group, pool, joint venture, or organization.
“ (3) Corporation.
“The term ‘corporation’ includes associations, joint-stock companies, and insurance companies.”
This, provision was stricken from the Articles on December 31, 1941, all but four of the subscribers assenting thereto.
Its return was timely filed with the Collector of Internal Revenue for the Eighth District of Illinois. Review in this circuit is by stipulation in writing pursuant to the provisions of § 1141 (b) (2) of the Internal Revenue Code. 26 U.S.C.A. Int.Rev.Code, § 1141 (b) (2).
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_respond2_7_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second 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").
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: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_r_natpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
W.T. SMITH, Plaintiff-Appellant, v. STATES MARINE INTERNATIONAL, INC., et al., Defendants, Central Gulf Lines, Inc., and Anchorage Tankship Corporation, Defendants-Appellees.
No. 88-3152.
United States Court of Appeals, Fifth Circuit.
Feb. 3, 1989.
Judy Guice, Paul T. Benton, Biloxi, Miss., for plaintiff-appellant.
George R. Alvey, Jefferson R. Tillery, New Orleans, La., for Cent. Gulf Lines, Inc.
Clayton Ramsey, James B. Kemp, Stephanie W. Jumonville, New Orleans, La., for Anchorage Tankship Corp.
Before CLARK, Chief Judge, TIMBERS and RUBIN, Circuit Judges.
Circuit Judge of the Second Circuit, sitting by designation.
ALVIN B. RUBIN, Circuit Judge:
The district court rendered a summary judgment deciding that a ship engineer who seeks to recover for a hearing loss occasioned by repeated exposure to loud noises in engine rooms had a reasonable opportunity to discover that his disability was caused by this exposure before he consulted a doctor, and, therefore, that the statute of limitations on his causes of action against the vessels aboard which he had worked had begun to run. Because the determination of the factual question, whether he actually knew or had a reasonable opportunity to learn the cause of his hearing loss at least three years before he filed suit, remains in dispute, we reverse the summary judgment.
I.
W.T. Smith worked as an engineer aboard various Merchant Marine vessels intermittently from 1942 to 1966, and continuously from 1966 until his retirement in 1982. During the latter period, he sailed aboard vessels owned by Central Gulf Lines, Inc., States Marine International, Inc., and Anchorage Tankship Corporation.
According to the record now before us, while working in the engine rooms, Smith was exposed every day to noises so loud that he could communicate with fellow workers only in writing. He occasionally experienced temporary hearing loss while at work, but after several hours off duty, his hearing would return to normal; “[w]hen you get away from it, you settle down, it don’t bother you as bad,” Smith testified in deposition. Despite exposing their employees to such working conditions, the vessel owners never issued or made available any type of protective hearing device. Smith placed cotton in his ears from time to time, but only with reluctance, since it interfered with his ability to do his job.
Smith took an audiogram in 1969 as part of a regular physical exam, and it revealed no functional hearing impairment. In the mid-1970’s, when he was in his early fifties, Smith first noticed problems with his hearing: he often could not understand telephone conversations; his wife complained that he talked loudly and set the volume on the television excessively high; and his friends voiced similar complaints. Because he thought that his hearing problem was due to advancing age, Smith ignored the entreaties of his wife and friends to seek medical advice. His hearing was so poor by 1982, however, that he retired from work, and could no longer use a telephone or watch television enjoyably. In May, 1986, Smith sought medical attention for his hearing problem for the first time, consulting Dr. Jason Smith, an ear, nose, and throat specialist, who concluded that Smith had sustained 42% binaural hearing loss caused by repeated exposure to excessive noise.
On February 2, 1987, almost five years after he had last worked as an engineer, Smith sued States Marine, Central Gulf, and Anchorage Tankship for damage to his hearing, invoking the Jones Act and the general maritime law, each of which is governed by a three-year statute of limitations. The shipping companies moved for summary judgment on the ground that Smith’s causes of action were time-barred. The district court granted the companies’ motion, finding that “by the mid 1970’s, [Smith] possessed or had reasonable opportunity to discover the critical facts of his injury, ... [and Smith] knew or had reasonable opportunity to discover that the cause of his hearing problem was his exposure to loud noise.”
II.
Neither the historical facts of this case as set out above, nor the applicable legal standard as enunciated in Clay v. Union Carbide Corp. and Albertson v. T.J. Stevenson & Co., Inc. is in dispute. The only question is one of fact: whether Smith “possessed or had a reasonable opportunity to discover the critical facts of his injury and its cause” at least three years before he filed suit. If he did, the statute of limitations runs from that date and now precludes his suit.
When, on summary judgment, the parties contest inferences derived from undisputed historical facts, a “court must ... draw every reasonable inference in favor of the party opposing the motion ... for summary judgment.”
That Smith knew in the mid-1970’s that he was suffering significant hearing impairment is beyond genuine dispute. Smith challenges only the district court’s finding that he “knew or had reasonable opportunity to discover the cause of his hearing problem” at least three years before he filed suit (emphasis supplied). When he knew or should have known its cause depends on circumstantial evidence and inferences to be drawn by the trier of fact from the evidence proffered. Unless reasonable persons could conclude only that by 1984 Smith knew or had a reasonable opportunity to discover that repeated exposure to loud noises in engine rooms had caused his hearing loss, it was improper for the court to reach this conclusion on summary judgment.
III.
If we credit Smith’s affidavit, as we must at this stage, it is clear that he did not actually know the cause of his injury until he saw Dr. Smith in 1986.
None of my employers throughout my work history ever advised me that my exposure to noise might result in hearing loss, and I was totally unaware of this possible connection until being told by Dr. Smith in May 1986_ [Bjecause none of my employers had warned me that exposure to noises could cause permanent hearing loss, I had absolutely no idea that the hearing loss I experienced in the mid to late 70’s and thereafter was caused by exposure to noise. Instead, I thought that the problems I was having were caused by my increasing age. I now understand that that assumption was incorrect.
Summary judgment could not properly be rendered, therefore, unless Smith should have appreciated that his hearing loss was attributable to long-term exposure to loud noises. Dr. Smith’s affidavit, however, strongly suggests that this inference may be mistaken.
Noise induced hearing loss is a cumulative permanent loss of hearing that develops gradually over years of exposure to hazardous noise. This latent occupational disease involves a long, slow, progressive process that subtly wears away an individual’s hearing. Because of the cumulative nature of this disease, injury ... is not discernable at the time of exposure and it is virtually impossible to correlate the progression of the disease with specific exposures on specific dates.... [Not only would it] have been impossible for [Smith] to know of this injury at the time of his many exposures[, but bjecause of the progressive nature of this occupational disease, victims who have not been made aware of the correlation between noise exposure and hearing loss do not ordinarily attribute the loss of hearing to their exposure to noise, (emphasis supplied)
The shipping companies’ medical experts, otolaryngologist Dr. Ugenfritz and audiologist Dr. Walters, confirmed in their depositions that many patients with noise-induced hearing loss do not associate loud noises with hearing problems.
According to this uncontradicted medical testimony, Smith could have known of the cause of his injury only if he actually knew of the general correlation between noise exposure and hearing loss. There is, however, no evidence in the record from which to deduce this factual predicate. While Smith testified that he had experienced temporary hearing loss immediately after being exposed to loud noises, there is no evidence that he was aware in the 1970’s of the correlation between loud noises and permanent hearing impairment.
A jury might credit Smith’s testimony that, shortly after his fiftieth birthday, he thought his hearing loss was caused simply by the aging process, the “only ... illness [man] ... cannot find an escape from.”
In Clay v. Union Carbide Corp., the district court found that the victim knew or should have known of the cause of his injury; Clay experienced laryngitis, breathing difficulties, nausea, burning eyes, headaches, bronchitis, and dizziness, all observable maladies which, as he explicitly told his physician, he thought “were related to his work around chemicals.” In contrast, Smith’s hearing loss was a slow, progressive disability, and most significantly, there is no evidence that Smith attributed or even suspected that its cause was related to his time spent as an engineer.
In Albertson v. T.J. Stephenson & Co., Inc., the victim suffered severe physical and mental illnesses as a result of exposure to the chemical trichloroethylene (TCE). The court found that Albertson “knew TCE was a dangerous chemical requiring special precautions and that a label on some of the TCE canisters warned against prolonged use.” It is not apparent from the record that Smith had such knowledge or notice of the dangers of exposure to loud noise.
A trier of fact might reasonably conclude that Smith did not know the correlation between loud noise and hearing loss, or that Smith reasonably thought he knew already the cause of his ailment. The district court should not, therefore, have rendered a summary judgment.
For the foregoing reasons, the order of the district court granting summary judgment is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.
. 46 U.S.C. § 688.
. 45 U.S.C. §§ 56, 763(a).
. 828 F.2d 1103 (5th Cir.1987).
. 749 F.2d 223 (5th Cir.1984).
. Clay, 828 F.2d at 1107 (emphasis supplied).
. Murphy v. Georgia-Pac. Corp., 628 F.2d 862, 866 (5th Cir.1980); Penton v. Crown Zellerbach Corp., 699 F.2d 737, 741 (5th Cir.1983); Hodges v. Exxon Corp., 727 F.2d 450, 452 (5th Cir.1984); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir.1985); Harbor Ins. Co. v. Trammell Crow Co., Inc., 854 F.2d 94, 98 (5th Cir.1988).
. Sophocles, Antigone (1954) (ed. D. Grene and R. Lattimore, transl. E. Wyckoff) Chorus at 171.
. Clay, 828 F.2d at 1105.
. Albertson, 749 F.2d at 226.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_treat
|
C
|
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 v. BOYER.
No. 8888.
United States Court of Appeals District of Columbia.
Argued May 22, 1945.
Decided July 9, 1945.
Mr. Bernard Margolius, Assistant United States Attorney, of Washington, D. C., with whom Messrs. Edward M. Curran, United States Attorney, and Charles B. Murray, John D. Lane, and John P. Burke, Assistant United States Attorneys, all of Washington, D. C., were on the brief, for appellant.
No appearance for appellee.
Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.
EDGERTON, Associate Justice.
Appellee was convicted in the Municipal Court of obtaining money by false pretenses. There was ample evidence that he cashed a check which he knew to be worthless. He was cross-examined about previous convictions on other bad check charges, and was allowed to say in explanation that those charges were all due to a mistake of his secretary. But the court did not allow him to explain the circumstances of a previous conviction of embezzlement. For this reason the Municipal Court of Appc reversed his present conviction and ordered a new trial. The government appeals from this reversal.
The fact that a witness has been convicted of a crime may be shown, on the theory that it diminishes the value of his testimony. The question is whether he may then explain the circumstances of his conviction in order to mitigate its apparent effect on his credibility. We agree with the Municipal Court of Appeals that it is unfair to the witness to permit no explanation, particularly when he is at the same time a defendant in a criminal case and “the prior conviction, though permitted solely for the purpose of affecting the credibility of the defendant, may have some tendency in the minds of the jury to prove his guilt of the crime for which he is then on trial.” It may have such a tendency even when it has no actual bearing on his credibility. Whether the witness is or is not a defendant, if the opposing party introduces his previous convictions we think the witness should be allowed to make such reasonably brief “protestations on his own behalf as he may feel able to make with a due regard to the penalties of perjury.” Since not all guilty men are equally guilty and some convicted men are innocent, we think the witness should be allowed either to extenuate his ;gu'ilt or to assert his innocence of the previous charges.
The government contends that if an explanation or denial is permitted it •opens the way to a collateral inquiry which may be long and confusing. Fear of such a result has led some courts to exclude all evidence designed to mitigate or rebut the im-peachment which results from proof of a prior conviction. But there is respectable authority to the contrary. It is generally agreed that in order to save time and avoid ■confusion of issues, inquiry into a previous ■crime must be stopped before its logical possibilities are exhausted; the witness ■cannot call other witnesses to corroborate his story and the opposing party cannot call •other witnesses to refute it. The disputed ■question is whether inquiry into a previous crime should stop (1) with proof of the •conviction of the witness or (2) with any reasonably brief “protestations on his own behalf” which he may wish to make. The second alternative will seldom be materially more confusing or time-consuming than the first, if the trial judge duly exercises his “considerable discretion in admitting or rejecting evidence.” And we think the second alternative is more conducive to the ends of justice. The jury is not likely to give undue weight to an ex-convict’s uncorroborated assertion of innocence or of .extenuating circumstances. Just where to draw the line, in. order to avoid both unfairness to the witness and confusion of issues, is a question which must frequently arise. The correct rule in such cases, we think,, is to recognize a wide discretion in the trial judge. He observes the conduct of counsel, the reaction of the witness under examination, and the resulting effect upon the jury. In other words, he is aware as no appellate court can be of the courtroom psychology and can best determine whether particular testimony should or should not be received.
The trial court’s refusal in the present case to let appellee offer any explanation whatever of one conviction, while technically wrong, does not justify a reversal. It related to a different kind of offense from the one for-which appellee was on trial. There was convincing proof of his guilt of the bad check charge which was the only issue to be tried. The jury knew that he had previously been convicted on similar charges. He was permitted to explain all his convictions but one. In spite of this the jury did not believe his testimony. In view of the number of his offenses, it is scarcely believable that failure to explain only one of them could have affected the verdict. Accordingly the judgment of the trial court should have been affirmed. The judgment of the Municipal Court of Appeals is therefore reversed.
Reversed.
D.C.Code, 1940, § 22 — 1301.
Boyer v. United States, Mun.Ct.App.D.C., 40 A.2d 247.
D.C.Code 1940, § 14 — 305. This provision covers both felonies and misdemeanors. Bostic v. United States, 68 App.D.C. 167, 94 F.2d 636, certiorari denied 303 U.S. 635, 58 S.Ct. 523, 82 L.Ed. 1095.
Wigmore on Evidence, 3d ed., § 1117(3).
Cf. Borchard, Convicting the Innocent (1932).
Wagman v. United. States, 6 Cir., 269 F. 568, certiorari denied, 255 U.S. 572, 41 S.Ct. 376, 65 L.Ed. 792.
E. g., Lamoureux v. New York, N. H. & H. R. Co., 169 Mass. 338, 47 N.E. 1009 (Holmes, J.).
E. g., Wagman v. United States, supra, note 6; Donnelly v. Donnelly, 156 Md. 81, 143 A. 648.
Bracey v. United States, 79 U.S.App.D.C. 23, 142 P.2d 85, 89.
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_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.
STONEHAM v. TEXAS.
No. 18,
Mise.
Decided February 13, 1967.
Charles E. Benson for appellant.
Per Curiam.
The appeal is dismissed.
The Chief Justice, Mr. Justice Douglas, and Mr. Justice Fortas would reverse the judgment of the court below for the reasons stated in the opinion of The Chief Justice in Spencer v. Texas, 385 U. S. 554, 569.
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_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Appellant, v. Genevieve E. FRANKEL, Executrix of the Estate of Samuel F. Frankel, Deceased, and Genevieve E. Frankel, Appellees.
No. 16809.
United States Court of Appeals Eighth Circuit.
May 4, 1962.
Daniel K. Mayers, Atty., Dept, of Justice, Washington, D. C., made argument for appellant and was on the brief. Louis F. Oberdorfer, Asst. Atty. Gen., John R. Jones, Jr., Lee A. Jackson, Attys., Dept, of Justice, Washington, D. C., and Miles W. Lord, U. S. Atty., Minneapolis, Minn., were with him on the brief.
C. Stanley McMahon, for Brehmer & McMahon, Winona, Minn., made argument for appellee and was on the brief.
Before SANBORN and MATTHES, Circuit Judges, and GRAVEN, District Judge.
SANBORN, Circuit Judge.
This is an appeal by the Government from a judgment for Genevieve E. Frankel in an action brought by her for the refund of income taxes which she paid for the year 1956. The action is based upon the claim that in her income tax return for that year there had erroneously been included in her gross income nontaxable gifts.
Genevieve E. Frankel is the widow of Samuel F. Frankel, who died February 22, 1956, and the executrix of his estate. Her husband had been employed by the Badger Foundry Company (a corporation), of Winona, Minnesota, for approximately forty years. At the time of his death he was its secretary and treasurer and responsible for sales.
On March 15, 1956, the Board of Directors of the Badger company adopted the following resolution:
“It was moved by W. W. Meyst and seconded by O. H. Williams and carried, that in appreciation of the years of faithful and devoted service to the Badger Foundry Company by S. F. Frankel that the Management be authorized to pay Mrs. S. F. Frankel the bonus earned in the first quarter of operations of the Company by S. F. Frankel at the rate set at the Directors’ Meeting of January 31, 1956, and to continue to pay Mrs. S. F. Frankel the monthly salary that would have been earned by Mr. Frankel for the balance of the calendar year of 1956.”
The bonus and the salary which Mr. Frankel would have received in 1956 for the remainder of the year 1956, had he lived, amounted to $17,135.15 (bonus $4,-635.15, salary $12,500). That amount was paid to Mrs. Frankel during 1956. On April 16,1956, another resolution was adopted by the Board of the Badger company “that the 1955 Chrysler New Yorker automobile owned by the company be given to Mrs. S. F. Frankel as soon as transfer of title can be arranged.” This car, which had a value of $2,300, was transferred to her in 1956, pursuant to the resolution.
The Badger company in its corporate income tax return for 1956 took a deduction, under “Compensation of Officers,” of $21,511.15, representing the salary payments in 1956 to Mr. S. F. Frankel prior to his death, the salary continuation payments made to Mrs. Frankel after his death, the bonus payment made to Mrs. Frankel, and the Company’s basis in the car given to her.
The Company had never, upon the death of an employee, made any transfers similar to those made to Mrs. Frankel, and during the previous twenty-five years there had been no death of any corporate officer.
There was no contract between the Badger company and Mr. Frankel or between it and Mrs. Frankel to make any of the payments which were made to her in 1956 after his death. There was no legal obligation on the part of the Company to make any of the transfers of money or property to her in 1956. She had performed no services for the Company in 1956 or previously and had never been a stockholder, an officer or an employee of the Company. The transfers in suit were made directly to Mrs. Frankel personally, and not to the estate of her husband.
In her 1956 income tax return Mrs. Frankel included in her gross income all but $2,000 of the total gratuities which she received from the Company, and paid her tax. On April 20, 1959, she filed a claim for refund in the amount of $3,239.-50, the amount of tax paid which was attributable to the inclusion of the gratuities in gross income. Her claim for refund was disallowed. She brought this action to obtain the refund, alleging, in effect, that the gratuities she received from the Company in 1956 were nontaxable gifts, excludable from gross income under Section 102(a) of the Internal Revenue Code of 1954, 26 U.S.C.1958 ed. § 102(a).
The "case was tried by the District Court without a jury. The facts were stipulated. The trial court determined that the gratuities received by the taxpayer from the Company in 1956, subsequent to the death of her husband, were “gifts” and were not includable in her gross income. Judgment was entered in her favor for $3,239.50. It is conceded that that was the amount due her if the transfers were “gifts” as the trial court found. The memorandum opinion of the District Court is reported in 192 F.Supp. 776. That court also ruled that Section 101(b) of the Internal Revenue Code of 1954 does not limit to $5,000 the amount excludable on payments such as those here involved. That ruling is not challenged on this appeal. We are concerned only with the question whether the trial court erred in holding that the gratuities were excludable from gross income as “gifts.”
The Government challenges the adequacy of the trial court’s findings to support its determination that what the taxpayer received from the Company were “gifts.” The Government says that the findings “were not pertinent to the-determinative issue of the objective motivation of the transferor—i. e., why the-payments were made,” and that “[t]he decision of the lower court should be vacated, and the case remanded for the purpose of obtaining meaningful findings of fact on the relevant question in this case.”' The Government also contends that if it. be assumed that the trial court’s findings were pertinent, “[tjhere was no evidence-in the record to support a conclusion that, the corporate directors transferred corporate assets to the taxpayer because of' their personal affection and sympathy for her.”
The trial court found, among other things:
“X.
“That the payment by Badger-Foundry Company to plaintiff of the-money and property above referred' to was not intended to be, and was. not, made in consideration of or as. additional compensation for any services rendered to it by Samuel F.. Frankel. Said sums were not paid pursuant to any obligation of any kind or nature, express or implied, owed by Badger Foundry Company to Samuel F. Frankel, to his estate, or to Genevieve E. Frankel, plaintiff herein, and no consideration was-given for or on account of said payments.
“XI.
“That the payments made by Badger Foundry Company to the plaintiff herein were benevolent acts and were intended to be and were made as expressions of sympathy, generosity and kindness to the widow of a deceased officer and employe.”
The court’s conclusions were stated as follows:
“The payments of the aforesaid sums by Badger Foundry Company to Genevieve E. Frankel, the plaintiff herein, were intended to be and were gifts to her by Badger Foundry Company within the meaning of the provisions of Section 102(a) of the 1954 Internal Revenue Code. 26 U.S.C. Section 102(a). The amount of such gifts was not includable in gross income and was not subject to the limitation of the §5,000.00 exclusion provided in Section 101(b) of the 1954 Internal Revenue Code. 26 U.S.C., Section 101(b).
“II.
“That for the calendar year 1956 defendant erroneously assessed and collected from plaintiff the sum of $3,239.50.
“HI.
“That defendant owes plaintiff the sum of $3,239.50 with interest at the rate of six percent (6%) per annum from and after April 15, 1957.”
Whether more explicit or more meaningful findings and conclusions could have been drawn, we need not decide. It seems obvious that the trial court determined that, under the stipulated facts, the gratuities that the taxpayer received from the Company after her husband’s death qualified as nontaxable gifts under § 102(a) of the 1954 Internal Revenue Code.
The Government relies heavily upon what it conceives to be the teachings of the opinion in Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218.
We think that the opinion in that case does not require that the instant case be remanded for more “meaningful findings.” The opinion in Duberstein covered two separate cases. One involved a present of a Cadillac car by Mohawk Metal Corporation, through its president Berman, to Duberstein out of gratitude or m recompense for business favors. The Tax Court decided that the Cadillac was not a “gift.” On petition to review, the Sixth Circuit (Duberstein v. Commissioner, 265 F.2d 28) reversed the Tax Court, holding that its decision was wrong. The Supreme Court disagreed with the Court of Appeals, ruling that the finding of the Tax Court was not clearly erroneous. (Page 291 of 363 U.S., page 1190 of 80 S.Ct.) The other case (Stanton v. United States, 363 U.S. 278, 281, 80 S.Ct. 1190, 4 L.Ed.2d 1218) involved a present of $20,000 by the Trinity Operating Company, Incorporated, to Stanton, who had been for approximately ten years in the employ of Trinity Church in New York City. He was comptroller of the Church corporation and president of the Operating Company. He had resigned from those positions to enter business for himself. The board of directors of the Operating Company, “in appreciation of the services rendered by Mr. Stanton,” awarded him a gratuity of $20,000 upon his departure from its employ. The Commissioner determined that the $20,-000 gratuity was taxable income. In a suit to obtain a refund of the tax paid as a result of including in gross income the $20,000 gratuity, the District Court held it was a “gift.” The findings of fact and conclusions, made orally, were:
“The resolution of the Board of Directors of the Trinity Operating Cotn^any, Incorporated, held November 19, 1942, after the resignations had been accepted of the plaintiff from his positions as controller of the corporation of the Trinity Church, and the president of the Trinity Operating Company, Incorporated, whereby a gratuity was voted to the plaintiff, Allen [sic] D. Stanton, in the amount of $20,000 payable to him in monthly installments of $2,000 each, commencing with the month of December, 1942, constituted a gift to the taxpayer, and therefore need not have been reported by him as income for the taxable years 1942, or 1943.”
The Court of Appeals for the Second Circuit reversed the judgment. Stanton v. United States, 268 F.2d 727. The question of the adequacy of the findings and conclusions of the trial court was not referred to by the Court of Appeals in its opinion. Apparently the only issue tried in the District Court in Stanton’s case was whether the gratuity received by him was excludable from gross income as a “gift,” and apparently, also, that issue was resolved in favor of the taxpayer. The Supreme Court granted certiorari. Five of the justices of the Supreme Court were of the view that the judgment in the Stanton case should be vacated and the case remanded to the District Court for further proceedings “looking toward new and adequate findings of fact.” (Page 293 of 363 U.S., page 1201 of 80 S.Ct.)
In the instant case it seems to us that the trial judge has made it plain by his opinion, findings and conclusions that he had determined that, under the stipulated facts, and under the standards established by Bogardus v. Commissioner, 302 U.S. 34, 43, 58 S.Ct. 61, 82 L.Ed. 32, and in conformity with Commissioner v. Duberstein, supra, [Stanton v. United States] (363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218), the taxpayer’s return for 1956 included as taxable income nontaxable gifts made to her out of a spirit of sympathy and generosity.
We believe that to remand this case for more “meaningful” findings as to motivation and intent would serve no useful purpose and would merely prolong this controversy. See and compare, United States v. Kasynski, 10 Cir., 284 F.2d 143, 146, in which the same question as to adequacy of the trial court’s findings was raised. As we read the opinion in Duberstein (363 U.S. 278, 80 S.Ct. 1190), it does not change the criterion laid down in Bogardus v. Commissioner (302 U.S. 34, 43, 58 S.Ct. 61) for determining what are “gifts” within the meaning of the applicable statute. But see, Poyner et al., Executors of Estate of Pierpont v. Commissioner, 4 Cir., 301 F.2d 287 decided March 21, 1962.
We note that Mr. Justice Frankfurter, in his opinion concurring in Duberstein and dissenting in Stanton, said (pages 296-297 of 363 U.S., pages 1202, 1203 of 80 S.Ct.):
“The Court has made only one authoritative addition to the previous course of our decisions. Recognizing Bogardus v. Commissioner, 302 U.S. 34 [, 58 S.Ct. 61], as ‘the leading case here’ and finding essential accord between the Court’s opinion and the dissent in that case, the Court has drawn from the dissent in Bogardus for infusion into what will now be a controlling qualification, recognition that it is ‘for the triers of the facts to seek among competing aims or motives the ones that dominated conduct.’ 302 U.S. 34, 45 [, 58 S.Ct. 61, 66] (dissenting opinion) . All this being so in view of the Court, it seems to me desirable not to try to improve what has ‘already been spelled out’ in the opinions of this Court but to leave to the lower courts the application of old phrases rather than to float new ones and thereby inevitably produce a new volume of exegesis on the new phrases.”
To our minds, the findings and conclusions of the trial court are adequate. We think the factual basis for them, although stipulated, was not inadequate and was sufficient to sustain the judgment. Cf. Poyner et al., Executors of Estate of Pierpont v. Commissioner, supra; Joshel v. Commissioner, 10 Cir., 296 F.2d 645, 647; Estate of Kuntz v. Commissioner, 6 Cir., 300 F.2d 849, decided April 4, 1962.
In Commissioner v. Duberstein, the Supreme Court said (page 289 of 363 U.S., page 1198 of 80 S.Ct.):
“ * * * Decision of the issue presented in these cases must be based ultimately on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct to the totality of the facts of each case. The nontechnical nature of the statutory standard, the close relationship of it to the data of practical human experience, and the multiplicity of relevant factual elements, with their various combinations, creating the necessity of ascribing the proper force to each, confirm us in our conclusion that primary weight in this area must be given to the conclusions of the trier of fact. Baker v. Texas & Pacific R. Co., 359 U.S. 227 [, 79 S.Ct. 664, 3 L.Ed.2d 756]; Commissioner v. Heininger, 320 U.S. 467, 475 [, 64 S.Ct. 249, 254, 88 L.Ed. 171]; United States v. Yellow Cab Co., 338 U.S. 338, 341 [, 70 S.Ct. 177, 179, 94 L.Ed. 150]; Bogardus v. Commissioner, supra [302 U.S. 34] at 45 [, 58 S.Ct. at page 66] (dissenting opinion).”
We are satisfied that in the present case the trial judge, whose long “experience with the mainsprings of human conduct” we regard as unsurpassed, did not misconceive or misapply the applicable law in this case to the facts before him.
The history of the Commissioner’s past attempts to have gratuities paid to widows of deceased employees made includable in gross income is of no help to the Government, and need not be discussed in this opinion.
The judgment appealed from is affirmed.
. Taxpayer excluded $2,000 under § 101 (b) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 101(b).
. Ҥ 102. Gifts and inheritances.
“(a) General rule.-—Gross income does not include the value of property acquired by gift, * *
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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sc_certreason
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
SAFECO INSURANCE COMPANY OF AMERICA ET AL. v. BURR ET AL.
No. 06-84.
Argued January 16, 2007
Decided June 4, 2007
Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and, Kennedy and Breyer, JJ., joined, in which Scaua, J., joined as to all but footnotes 11 and 15, in which Thomas and Auto, JJ., joined as to all but Part III-A, and in which Stevens and Ginsburg, JJ., joined as to Parts I, II, III-A, and IV-B. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Ginsburg, J., joined, post, p. 71. Thomas, J., filed an opinion concurring in part, in which Auto, J., joined, post, p. 73.
Maureen E. Mahoney argued the cause for petitioners in both cases. On the briefs in No. 06-84 were Michael K. Kellogg, Sean A. Lev, Michael P. Kenny, Cari K. Dawson, Susan H. Ephron, and Lisa E. Lear. With Ms. Mahoney on the briefs in No. 06-100 were Richard P. Bress, Robert D. Allen, Meloney Cargil Perry, Jay F. Utley, and Brandon P. Long.
Patricia A. Millett argued the cause for the United States as amicus curiae in both cases. With her on the brief were Solicitor General Clement, Deputy Solicitor General Hungar, John F. Daly, and Lawrence DeMille-Wagman.
Scott A. Shorr argued the cause for respondents in both cases. With him on the brief were Robert A. Shlachter, Steve D. Larson, and Scott L. Nelson.
Together with No. 06-100, GEICO General Insurance Co. et al. v. Edo, also on certiorari to the same court.
Briefs of amici curiae urging reversal in both cases were filed for the American Insurance Association by Seth P. Waxman, Noah A. Levine, J. Stephen Zielezienski, and Allan J. Stein; for the Consumer Data Industry Association by Anne P. Fortney; for Farmers Insurance Co. of Oregon et al. by Theodore J. Boutrous, Jr., Gail E. Lees, Mark A. Perry, William E. Thomson, Christopher Chorba, Barnes H. Ellis, and James N. West-wood; for the Financial Services Roundtable et al. by L. Richard Fischer, Beth S. Brinkmann, Seth M. Galanter, Robin S. Conrad, and Shane Brennan; for Ford Motor Co. by David G. Leitch, John M. Thomas, Walter Dellinger, and Matthew M. Shors; for the Freedomworks Foundation by Gene C. Schaerr, Steffen N. Johnson, and Linda T. Coberly; for Mortgage Insurance Cos. of America et al. by Thomas M. Hefferon, Richard M. Wyner, Joseph F. Yenouskas, and Jeremiah S. Buckley; for the National Association of Mutual Insurance Cos. by Sheila L. Bimbaum, Barbara Wrubel, Douglas W. Dunham, and Ellen P. Quackenbos; for the Property Casualty Insurers Association of America by Susan M. Popik and Merri A. Baldwin; for Trans Union LLC by Michael O’Neil and Roger L. Long-tin; and for the Washington Legal Foundation by Daniel J. Popeo and Richard A Samp.
Briefs of amici curiae urging affirmance in both cases were filed for the State of Oregon et al. by Hardy Myers, Attorney General of Oregon, Peter Shepherd, Deputy Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Assistant Attorney General, by Eugene A Adams, Interim Attorney General of the District of Columbia, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Mike Beebe of Arkansas, Carl C. Danberg of Delaware, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Tom Miller of Iowa, J. Joseph Curran, Jr., of Maryland, Mike Hatch of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Eliot Spitzer of New York, Jim Petro of Ohio, W. A Drew Edmondson of Oklahoma, Henry McMaster of South Carolina, Larry Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Darrell V. McGraw, Jr., of West Virginia, Peggy A Lautenschlager of Wisconsin, and Patrick J. Crank of Wyoming; for Insurance Commissioners of the State of Delaware et al. by Patrick T. Ryan, Jeanie Kunkle Vaudt, Assistant Attorney General of Iowa, John W. Campbell, John H. Clough, Michael W. Ridgeway, Rob McKenna, Attorney General of Washington, and Christina Beusch, Assistant Attorney General of Washington; and for the National Consumer Law Center, Inc., et al. by Richard J. Rubin, Joanne S. Faulkner, and Elizabeth D. De Armond.
Justice Souter
delivered the opinion of the Court.
The Fair Credit Reporting Act (FCRA or Act) requires notice to any consumer subjected to “adverse action... based in whole or in part on any information contained in a consumer [credit] report.” 15 U. S. C. § 1681m(a). Anyone who “willfully fails” to provide notice is civilly liable to the consumer. § 1681n(a). The questions in these consolidated cases are whether willful failure covers a violation committed in reckless disregard of the notice obligation, and, if so, whether petitioners Safeco and GEICO committed reckless violations. We hold that reckless action is covered, that GEICO did not violate the statute, and that while Safeco might have, it did not act recklessly.
I
A
Congress enacted FCRA in 1970 to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy. See 84 Stat. 1128, 15 U. S. C. § 1681; TRW Inc. v. Andrews, 534 U. S. 19, 23 (2001). The Act requires, among other things, that “any person [who] takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer report” must notify the affected consumer. 15 U. S. C. § 1681m(a). The notice must point out the adverse action, explain how to reach the agency that reported on the consumer’s credit, and tell the consumer that he can get a free copy of the report and dispute its accuracy with the agency. Ibid. As it applies to an insurance company, “adverse action” is “a denial or cancellation of, an increase in any charge for, or a reduction or other adverse or unfavorable change in the terms of coverage or amount of, any insurance, existing or applied for.” § 1681a(k)(l)(B)(i).
FCRA provides a private right of action against businesses that use consumer reports but fail to comply. If a violation is negligent, the affected consumer is entitled to actual damages. § 1681o(a) (2000 ed., Supp. IV). If willful, however, the consumer may have actual damages, or statutory damages ranging from $100 to $1,000, and even punitive damages. § 1681n(a) (2000 ed.).
B
Petitioner GEICO writes auto insurance through four subsidiaries: GEICO General, which sells “preferred” policies at low rates to low-risk customers; Government Employees, which also sells “preferred” policies, but only to government employees; GEICO Indemnity, which sells standard policies to moderate-risk customers; and GEICO Casualty, which sells nonstandard policies at higher rates to high-risk customers. Potential customers call a toll-free number answered by an agent of the four affiliates, who takes information and, with permission, gets the applicant’s credit score. This information goes into GEICO’s computer system, which selects any appropriate company and the particular rate at which a policy may be issued.
For some time after FCRA went into effect, GEICO sent adverse action notices to all applicants who were not offered “preferred” policies from GEICO General or Government Employees. GEICO changed its practice, however, after a method to “neutralize” an applicant's credit score was devised: the applicant’s company and tier placement is compared with the company and tier placement he would have been assigned with a “neutral” credit score, that is, one calculated without reliance on credit history. *4 Under this new scheme, it is only if using a neutral credit score would have put the applicant in a lower priced tier or company that GEICO sends an adverse action notice; the applicant is not otherwise told if he would have gotten better terms with a better credit score.
Respondent Ajene Edo applied for auto insurance with GEICO. After obtaining Edo’s credit score, GEICO offered him a standard policy with GEICO Indemnity (at rates higher than the most favorable), which he accepted. Because Edo’s company and tier placement would have been the same with a neutral score, GEICO did not give Edo an adverse action notice. Edo later filed this proposed class action against GEICO, alleging willful failure to give notice in violation of § 1681m(a); he claimed no actual harm, but sought statutory and punitive damages under § 1681n(a). The District Court granted summary judgment for GEICO, finding there was no adverse action when “the premium charged to [Edo]... would have been the same even if GEICO Indemnity did not consider information in [his] consumer credit history.” Edo v. GEICO Casualty Co., CV 02-678-BR, 2004 U. S. Dist. LEXIS 28522, *12 (D. Ore., Feb. 23, 2004), App. to Pet. for Cert, in No. 06-100, p. 46a.
Like GEICO, petitioner Safeco relies on credit reports to set initial insurance premiums, as it did for respondents Charles Burr and Shannon Massey, who were offered higher rates than the best rates possible. Safeco sent them no adverse action notices, and they later joined a proposed class action against the company, alleging willful violation of §1681m(a) and seeking statutory and punitive damages under §1681n(a). The District Court ordered summary judgment for Safeco, on the understanding that offering a single, initial rate for insurance cannot be “adverse action.”
The Court of Appeals for the Ninth Circuit reversed both judgments. In GEICO’s case, it held that whenever a consumer “would have received a lower rate for his insurance had the information in his consumer report been more favorable, an adverse action has been taken against him.” Reynolds v. Hartford Financial Servs. Group, Inc., 435 F. 3d 1081, 1093 (2006). Since a better credit score would have placed Edo with GEICO General, not GEICO Indemnity, the appeals court held that GEICO’s failure to give notice was an adverse action.
The Ninth Circuit also held that an insurer “willfully” fails to comply with FCRA if it acts with “reckless disregard” of a consumer’s rights under the Act. Id., at 1099. It explained that a company would not be acting recklessly if it “diligently and in good faith attempted to fulfill its statutory obligations” and came to a “tenable, albeit erroneous, interpretation of the statute.” Ibid. The court went on to say that “a deliberate failure to determine the extent of its obligations” would not ordinarily escape liability under § 1681n, any more than “reliance on creative lawyering that provides indefensible answers.” Ibid. Because the court believed that the enquiry into GEICO’s reckless disregard might turn on undisclosed circumstances surrounding GEICO’s revision of its notification policy, the Court of Appeals remanded the company’s case for further proceedings.
In the action against Safeco, the Court of Appeals rejected the District Court’s position, relying on its reasoning in GEICO’s case (where it had held that the notice requirement applies to a single statement of an initial charge for a new policy). Spano v. Safeco Corp., 140 Fed. Appx. 746 (2005). The Court of Appeals also rejected Safeco’s argument that its conduct was not willful, again citing the GEICO case, and remanded for further proceedings.
We consolidated the two matters and granted certiorari to resolve a conflict in the Circuits as to whether §1681n(a) reaches reckless disregard of FCRA’s obligations, and to clarify the notice requirement in § 1681m(a). 548 U. S. 942 (2006). We now reverse in both cases.
II
GEICO and Safeco argue that liability under § 1681n(a) for “willfully fail[ing] to comply” with FCRA goes only to acts known to violate the Act, not to reckless disregard of statutory duty, but we think they are wrong. We have said before that “willfully” is a “word of many meanings whose construction is often dependent on the context in which it appears,” Bryan v. United States, 524 U. S. 184, 191 (1998) (internal quotation marks omitted); and where willfulness is a statutory condition of civil liability, we have generally taken it to cover not only knowing violations of a standard, but reckless ones as well, see McLaughlin v. Richland Shoe Co., 486 U. S. 128, 132-133 (1988) (“willful,” as used in a limitation provision for actions under the Fair Labor Standards Act, covers claims of reckless violation); Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 125-126 (1985) (same, as to a liquidated damages provision of the Age Discrimination in Employment Act of 1967); cf. United States v. Illinois Central R. Co., 303 U. S. 239, 242-243 (1938) (“willfully,” as used in a civil penalty provision, includes “ ‘conduct marked by careless disregard whether or not one has the right so to act’ ” (quoting United States v. Murdock, 290 U. S. 389, 395 (1933))). This construction reflects common law usage, which treated actions in “reckless disregard” of the law as “willful” violations. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §34, p. 212 (5th ed. 1984) (hereinafter Prosser and Keeton) (“Although efforts have been made to distinguish” the terms “willful,” “wanton,” and “reckless,” “such distinctions have consistently been ignored, and the three terms have been treated as meaning the same thing, or at least as coming out at the same legal exit”). The standard civil usage thus counsels reading the phrase “willfully fails to comply” in § 1681n(a) as reaching reckless FCRA violations, and this is so both on the interpretive assumption that Congress knows how we construe statutes and expects us to run true to form, see Commissioner v. Keystone Consol. Industries, Inc., 508 U. S. 152, 159 (1993), and under the general rule that a common law term in a statute comes with a common law meaning, absent anything pointing another way, Beck v. Prupis, 529 U. S. 494, 500-501 (2000).
GEICO and Safeco argue that Congress did point to something different in FCRA, by a drafting history of § 1681n(a) said to show that liability was supposed to attach only to knowing violations. The original version of the Senate bill that turned out as FCRA had two standards of liability to victims: grossly negligent violation (supporting actual damages) and willfiil violation (supporting actual, statutory, and punitive damages). S. 823, 91st Cong., 1st Sess., § 1 (1969). GEICO and Safeco argue that since a “gross negligence” standard is effectively the same as a “reckless disregard” standard, the original bill’s “willfulness” standard must have meant a level of culpability higher than “reckless disregard,” or there would have been no requirement to show a different state of mind as a condition of the potentially much greater liability; thus, “willfully fails to comply” must have referred to a knowing violation. Although the gross negligence standard was reduced later in the legislative process to simple negligence (as it now appears in § 1681o), the provision for willful liability remains unchanged and so must require knowing action, just as it did originally in the draft of §1681n.
Perhaps. But Congress may have scaled the standard for actual damages down to simple negligence because it thought gross negligence, being like reckless action, was covered by willfulness. Because this alternative reading is possible, any inference from the drafting sequence is shaky, and certainly no match for the following clue in the text as finally adopted, which points to the traditional understanding of willfulness in the civil sphere.
The phrase in question appears in the preamble sentence of § 1681n(a): “Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer____” Then come the details, in paragraphs (1)(A) and (1)(B), spelling out two distinct measures of damages chargeable against the willful violator. As a general matter, the consumer may get either actual damages or “damages of not less than $100 and not more than $1,000.” § 1681n(a)(l)(A). But where the offender is liable “for obtaining a consumer report under false pretenses or knowingly without a permissible purpose,” the statute sets liability higher: “actual damages... or $1,000, whichever is greater.” § 1681n(a)(1)(B).
If the companies were right that “willfully” limits liability under § 1681n(a) to knowing violations, the modifier “knowingly” in § 1681n(a)(l)(B) would be superfluous and incongruous; it would have made no sense for Congress to condition the higher damages under § 1681n(a) on knowingly obtaining a report without a permissible purpose if the general threshold of any liability under the section were knowing misconduct. If, on the other hand, “willfully” covers both knowing and reckless disregard of the law, knowing violations are sensibly understood as a more serious subcategory of willful ones, and both the preamble and the subsection have distinct jobs to do. See United States v. Menasche, 348 U. S. 528, 538-539 (1955) (“'[G]ive effect, if possible, to every clause and word of a statute’ ” (quoting Montclair v. Ramsdell, 107 U. S. 147, 152 (1883))).
The companies make other textual and structural arguments for their view, but none is persuasive. Safeco thinks our reading would lead to the absurd result that one could, with reckless disregard, knowingly obtain a consumer report without a permissible purpose. But this is not so; action falling within the knowing subcategory does not simultaneously fall within the reckless alternative. Then both GEICO and Safeco argue that the reference to acting “knowingly and willfully” in FCRA’s criminal enforcement provisions, §§1681q and 1681r, indicates that “willfully” cannot include recklessness. But we are now on the criminal side of the law, where the paired modifiers are often found, see, e. g., 18 U. S. C. § 1001 (2000 ed. and Supp. IV) (false statements to federal investigators); 20 U. S. C. § 1097(a) (embezzlement of student loan funds); 18 U. S. C. § 1542 (2000 ed. and Supp. IV) (false statements in a passport application). As we said before, in the criminal law “willfully” typically narrows the otherwise sufficient intent, making the government prove something extra, in contrast to its civil law usage, giving a plaintiff a choice of mental states to show in making a case for liability, see n. 9, supra. The vocabulary of the criminal side of FCRA is consequently beside the point in construing the civil side.
III
A
Before getting to the claims that the companies acted recklessly, we have the antecedent question whether either company violated the adverse action notice requirement at all. In both cases, respondent-plaintiffs’ claims are premised on initial rates charged for new insurance policies, which are not “adverse” actions unless quoting or charging a first-time premium is “an increase in any charge for... any insurance, existing or applied for.” 15 U. S. C. § 1681a(k)(l)(B)(i).
In Safeco’s case, the District Court held that the initial rate for a new insurance policy cannot be an “increase” because there is no prior dealing. The phrase “increase in any charge for... insurance” is readily understood to mean a change in treatment for an insured, which assumes a previous charge for comparison. See Webster’s New International Dictionary 1260 (2d ed. 1957) (defining “increase” as “[a]ddition or enlargement in size, extent, quantity, number, intensity, value, substance, etc.; augmentation; growth; multiplication”). Since the District Court understood “increase” to speak of change just as much as of comparative size or quantity, it reasoned that the statute’s “increase” never touches the initial rate-offer^where there is no change.
The Government takes the part of the Court of Appeals in construing “increase” to reach a first-time rate. It says that regular usage of the term is not as narrow as the District Court thought: the point from which to measure difference can just as easily be understood without referring to prior individual dealing. The Government gives the example of a gas station owner who charges more than*the posted price for gas to customers he does not like; it makes sense to say that the owner increases the price and that the driver pays an increased price, even if he never pulled in there for gas before. See Brief for United States as Amicus Curiae 26. The Government implies, then, that reading “increase” requires a choice, and the chosen reading should be the broad one in order to conform to what Congress had in mind.
We think the Government’s reading has the better fit with the ambitious objective set out in the Act’s statement of purpose, which uses expansive terms to describe the adverse effects of unfair and inaccurate credit reporting and the responsibilities of consumer reporting agencies. See § 1681(a) (inaccurate reports “directly impair the efficiency of the banking system”; unfair reporting methods undermine public confidence “essential to the continued functioning of the banking system”; need to “insure” that reporting agencies “exercise their grave responsibilities” fairly, impartially, and with respect for privacy). The descriptions of systemic problem and systemic need as Congress saw them do nothing to suggest that remedies for consumers placed at a disadvantage by unsound credit ratings should be denied to first-time victims, and the legislative histories of FCRA’s original enactment and of the 1996 amendment reveal no reason to confine attention to customers and businesses with prior dealings. Quite the contrary. Finally, there is nothing about insurance contracts to suggest that Congress might have meant to differentiate applicants from existing customers when it set the notice requirement; the newly insured who gets charged more owing to an erroneous report is in the same boat with the renewal applicant. We therefore hold that the “increase” required for “adverse action,” 15 U. S. C. § 1681a(k)(l)(B)(i), speaks to a disadvantageous rate even with no prior dealing; the term reaches initial rates for new applicants.
B
Although offering the initial rate for new insurance can be an “adverse action,” respondent-plaintiffs have another hurdle to clear, for § 1681m(a) calls for notice only when the adverse action is “based in whole or in part on” a credit report. GEICO argues that in order to have adverse action “based on” a eredit report, consideration of the report must be a necessary condition for the increased rate. The Government and respondent-plaintiffs do not explicitly take a position on this point.
To the extent there is any disagreement on the issue, we'accept GEICO’s reading. In common talk, the phrase “based on” indicates a but-for causal relationship and thus a necessary logical condition. Under this most natural reading of § 1681m(a), then, an increased rate is not “based in whole or in part on” the credit report unless the report was a necessary condition of the increase.
As before, there are textual arguments pointing another way. The statute speaks in terms of basing the action “in part” as well as wholly on the credit report, and this phrasing could mean that adverse action is “based on” a credit report whenever the report was considered in the rate-setting process, even without being a necessary condition for the rate increase. But there are good reasons to think Congress preferred GEICO’s necessary-condition reading.
If the statute has any claim to lucidity, not all “adverse actions” require notice, only those “based... on” information in a credit report. Since the statute does not explicitly call for notice when a business acts adversely merely after consulting a report, conditioning the requirement on action “based... on” a report suggests that the duty to report arises from some practical consequence of reading the report, not merely some subsequent adverse occurrence that would have happened anyway. If the credit report has no identifiable effect on the rate, the consumer has no immediately practical reason to worry about it (unless he has the power to change every other fact that stands between himself and the best possible deal); both the company and the consumer are just where they would have been if the company had never seen the report. And if examining reports that make no difference was supposed to trigger a reporting requirement, it would be hard to find any practical point in imposing the “based... on” restriction. So it makes more sense to suspect that Congress meant to require notice and prompt a challenge by the consumer only when the consumer would gain something if the challenge succeeded.
C
To sum up, the difference required for an increase can be understood without reference to prior dealing (allowing a first-time applicant to sue), and considering the credit report must be a necessary condition for the difference. The remaining step in determining a duty to notify in cases like these is identifying the benchmark for determining whether a first-time rate is a disadvantageous increase. And in dealing with this issue, the pragmatic reading of “based... on” as a condition necessary to make a practical difference carries a helpful suggestion.
The Government and respondent-plaintiffs argue that the baseline should be the rate that the applicant would have received with the best possible credit score, while GEICO contends it is what the applicant would have had if the company had not taken his credit score into account (the “neutral score” rate GEICO used in Edo’s case). We think GEICO has the better position, primarily because its “increase” baseline is more comfortable with the understanding of causation just discussed, which requires notice under § 1681m(a) only when the effect of the credit report on the initial rate offered is necessary to put the consumer in a worse position than other relevant facts would have decreed anyway. If Congress was this concerned with practical consequences when it adopted a “based... on” causation standard, it presumably thought in equally practical terms when it spoke of an “increase” that must be defined by a baseline to measure from. Congress was therefore more likely concerned with the practical question whether the consumer’s rate actually suffered when the company took his credit report into account than the theoretical question whether the consumer would have gotten a better rate with perfect credit.
The Government objects that this reading leaves a loophole, since it keeps first-time applicants who actually deserve better-than-neutral credit scores from getting notice, even when errors in credit reports saddle them with unfair rates. This is true; the neutral-score baseline will leave some consumers without, a notice that might lead to discovering errors. But we do not know how often these cases will occur, whereas we see a more demonstrable and serious disadvantage inhering in the Government’s position.
Since the best rates (the Government’s preferred baseline) presumably go only to a minority of consumers, adopting the Government’s view would require insurers to send slews of adverse action notices; every young applicant who had yet to establish a gilt-edged credit report, for example, would get a notice that his charge had been “increased” based on his credit report. We think that the consequence of sending out notices on this scale would undercut the obvious policy behind the notice requirement, for notices as common as these would take on the character of formalities, and formalities tend to be ignored. It would get around that new insurance usually comes with an adverse action notice, owing to some legal quirk, and instead of piquing an applicant’s interest about the accuracy of his credit record, the commonplace notices would mean just about nothing and go the way of junk mail. Assuming that Congress meant a notice of adverse action to get some attention, we think the cost of closing the loophole would be too high.
While on the subject of hypernotification, we should add a word on another point of practical significance. Although the rate initially offered for new insurance is an “increase” calling for notice if it exceeds the neutral rate, did Congress intend the same baseline to apply if the quoted rate remains the same over a course of dealing, being repeated at each renewal date?
We cannot believe so. Once a consumer has learned that his credit report led the insurer to charge more, he has no need to be told over again with each renewal if his rate has not changed. For that matter, any other construction would probably stretch the word “increase” more than it could bear. Once the gas station owner had charged the customer the above-market price, it would be strange to speak of the same price as an increase every time the customer pulled in. Once buyer and seller have begun a course of dealing, customary usage does demand a change for “increase” to make sense. Thus, after initial dealing between the consumer and the insurer, the baseline for “increase” is the previous rate or charge, not the “neutral” baseline that applies at the start.
IV
A
In GEICO’s case, the initial rate offered to Edo was the one he would have received if his credit score had not been taken into account, and GEICO owed him no adverse action notice under § 1681m(a).
B
Safeco did not give Burr and Massey any notice because it thought § 1681m(a) did not apply to initial applications, a mistake that left the company in violation of the statute if Burr and Massey received higher rates “based in whole or in part” on their credit reports; if they did, Safeco would be liable to them on a showing of reckless conduct (or worse). The first issue we can forget, however, for although the record does not reliably indicate what rates they would have obtained if their credit reports had not been considered, it is clear enough that if Safeco did violate the statute, the company was not reckless in falling down in its duty.
While “the term recklessness is not self-defining,” the common law has generally understood it in the sphere of civil liability as conduct violating an objective standard: action entailing “an unjustifiably high risk of harm that is either known or so obvious that it should be known.” Farmer v. Brennan, 511 U. S. 825, 836 (1994); see Prosser and Keeton §34, at 213-214. The Restatement, for example, defines reckless disregard of a person’s physical safety this way:
“The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” 2 Restatement (Second) of Torts §500, p. 587 (1963-1964).
It is this high risk of harm, objectively assessed, that is the essence of recklessness at common law. See Prosser and Keeton § 34, at 213 (recklessness requires “a known or obvious risk that was so great as to make it highly probable that harm would follow”).
There being no indication that Congress had something different in mind, we have no reason to deviate from the common law understanding in applying, the statute. See Prupis, 529 U. S., at 500-501. Thus, a company subject to FCRA does not act in reckless disregard of it unless the action is not only a violation under a reasonable reading of the statute’s terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless.
Here, there is no need to pinpoint the negligence/recklessness line, for Safeco’s reading of the statute, albeit erroneous, was not objectively unreasonable. As we said, § 1681a(k)(l)(B)(i) is silent on the point from which to measure “increase.” On the rationale that “increase” presupposes prior dealing, Safeco took the definition as excluding initial rate offers for new insurance, and so sent no adverse action notices to Burr and Massey. While we disagree with Safeco’s analysis, we recognize that its reading has a foundation in the statutory text, see supra, at 61, and a sufficiently convincing justification to have persuaded the District Court to adopt it and rule in Safeco’s favor.
This is not a case in which the business subject to the Act had the benefit of guidance from the courts of appeals or the Federal Trade Commission (FTC) that might have warned it away from the view it took. Before these cases, no court of appeals had spoken on the issue, and no authoritative guidance has yet come from the FTC (which in any case has only enforcement responsibility, not substantive rulemaking authority, for the provisions in question, see 15 U. S. C. §§ 1681s(a)(1), (e)). Cf. Saucier v. Katz, 533 U. S. 194, 202 (2001) (assessing, for qualified immunity purposes, whether an action was reasonable in light of legal rules that were “clearly established” at the time). Given this dearth of guidance and the less-than-pellucid statutory text, Safeco’s reading was not objectively unreasonable, and so falls well short of raising the “unjustifiably high risk” of violating the statute necessary for reckless liability.
* * *
The Court of Appeals correctly held that reckless disregard of a requirement of FCRA would qualify as a willful violation within the meaning of §1681n(a). But there was no need for that court to remand the cases for factual development. GEICO’s decision to issue no adverse action notice to Edo was not a violation of § 1681m(a), and Safeco’s misreading of the statute was not reckless. The judgments of the Court of Appeals are therefore reversed in both eases, which are remanded for further proceedings consistent with this opinion.
■It is so ordered.
Justice Scalia joins all but footnotes 11 and 15 of this opinion.
So far as it matters here, the Act defines “consumer report” as “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, [or] credit capacity... which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for... credit or insurance to be used primarily for personal, family, or household purposes.” 15 U. S. C. §1681a(d)(l) (footnote omitted). The scope of this definition is not at issue.
The specific petitioners are subsidiary companies of the GEICO Corporation; for the sake of convenience, we call them “GEICO” collectively.
The Act defines a “credit score” as “a numerical value or a categorization derived from a statistical tool or modeling system used by a person who makes or arranges a loan to predict the likelihood of certain credit behaviors, including default.” 15 U. S. C. § 1681g(f)(2)(A) (2000 ed., Supp. IV). Under its contract with its credit information providers, GEICO learned credit scores and facts in the credit reports that significantly influenced the scores, but did not have access to the credit reports themselves.
A number of States permit the use of such “neutral” credit scores to ensure that consumers with thin or unidentifiable credit histories are not treated disadvantageously. See, e. g., N. Y. Ins. Law Ann. §§ 2802(e), (e)(1) (West 2006) (generally prohibiting an insurer from “consider[ing] an absence of credit information,” but allowing it to do so if it “treats the
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_appel2_7_3
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second 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".
Gloria HODGE, Lorenza Chavez and Elizabeth Duberry, Plaintiffs-Appellants, v. The DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, HOUSING DIVISION, DADE COUNTY, FLORIDA, etc., et al., Defendants-Appellees.
No. 87-5745.
United States Court of Appeals, Eleventh Circuit.
Jan. 4, 1989.
Peter H. Barber, Legal Services of Greater Miami, Inc., Miami, Fla., for plaintiffs-appellants.
Thomas H. Robertson, Asst. County Atty., Dade County Attorney’s Office, Miami, Fla., for defendants-appellees.
Before VANCE and KRAVITCH, Circuit Judges, and HENDERSON, Senior Circuit Judge.
PER CURIAM:
In this appeal we are called upon to decide whether the district court abused its discretion in dissolving a permanent injunction against a public housing agency. The United States District Court for the Southern District of Florida held that subsequent changes in federal law and the local agency’s regulations concerning grievance proceedings for tenants of public housing now adequately serve the purposes contemplated by the injunction and thus constitute a change in circumstances sufficient to justify its dissolution. For reasons stated below, we vacate the district court’s order and remand for further proceedings.
This class action began in June, 1968. The original plaintiffs, tenants of public housing projects operated by the housing division of the Dade County Department of Housing and Urban Development (the “County”), challenged, on procedural due process grounds, the constitutionality of the County’s method of collecting sums alleged to be owed by public housing tenants as a result of loss or destruction of the County’s property. In 1970 the parties entered into a consent order in the district court which required the County to adopt regulations, set forth in the order, detailing the procedures to be followed when assessing charges against tenants. The order, which expressly applied to all present and future public housing tenants, guaranteed that any attempt at imposition of liability for loss, damage or destruction of the County’s property would be accompanied by a comprehensive notice including the nature of the loss, the proposed remedial action and the cost of any needed repairs or replacement, as well as a statement advising the tenant of the availability of a hearing. The decree also directed the County to provide its tenants a fair hearing to resolve liability disputes raised by tenants.
In the mid-1970s, the United States Department of Housing and Urban Development (“HUD”) promulgated regulations which obligated public housing agencies (“PHAs”) such as the County to adopt a regulation affording each tenant an opportunity for a hearing on a grievance “in accordance with the requirements, standards, and criteria” published by HUD. 24 C.F.R. § 966.52 (1988). Pursuant to HUD’s guidelines, the rules adopted by the PHAs must be made part of all the tenants’ leases. Id. To initiate a grievance proceeding, the tenant must present his complaint either to the PHA or the project office and participate in an informal discussion of the dispute. Id. at § 966.54. If the tenant remains dissatisfied, he or she may then request a hearing. Id. The federal regulations further provide that “[schedules of special charges for services, repairs and utilities and rules and regulations which are required to be incorporated in the lease by reference shall be publicly posted in a conspicuous manner in the Project Office and shall be furnished to applicants and tenants on request.” Id. at § 966.5. However, HUD’s regulations do not require PHAs to inform tenants, contemporaneously with an assessment, of the availability of a hearing. In 1983. Congress enacted a statute directing HUD, by regulation, to require PHAs to establish administrative grievance procedures under which tenants shall be notified of the specific grounds of any proposed adverse PHA action and furnished an opportunity for a fair hearing to contest such action. 42 U.S.C. § 1437d(k) (Supp. IY 1987).
A motion for contempt filed by two tenants in 1981 alleged that the County was not complying with the consent decree. The parties settled that dispute by signing, in 1982, an amended consent order which mandated updated notice and hearing requirements, incorporating the County’s grievance procedure provisions previously adopted to comply with the federal regulations.
The latest chapter in this litigation began in 1987 with a contempt motion filed by Lorenza Chavez and Elizabeth Dewberry (the “Tenants”) charging the County with widespread noncompliance with the 1982 , amended consent order. The County responded by filing a motion to dismiss. At oral argument on the motions, the County argued that federal regulations and statutes adopted after 1968 require the County to accomplish the purposes contemplated by the permanent injunction. The district court agreed that the intervening changes in federal law constituted a sufficient change in circumstances to justify modification of the consent decree. Consequently, the district court denied the contempt motion and dismissed the proceedings, without prejudice to the Tenants, terminating the injunction. The Tenants appeal.
The Tenants attack the district court’s order on two grounds. First, they argue that the case was not in a proper procedural posture for dismissal because the County had not formally sought relief from the judgment , based on changed circumstances, and the district court failed to hold an evidentiary hearing to determine whether, in fact, conditions had changed sufficiently to warrant relief. Second, the Tenants contend that the district court overlooked the applicable substantive law, failing to apply the stringent standard urged by Tenants in evaluating the merits of the changed circumstances controversy.
We agree with the Tenants “that a district court must hold an evidentiary hearing before modifying a consent decree in such a manner as to remove requirements previously imposed.” Delaware Valley Citizens’ Council for Clean Air v. Commonwealth of Pennsylvania, 674 F.2d 976, 981 (3d Cir.), cert. denied, 459 U.S. 905, 103 S.Ct. 206, 74 L.Ed.2d 165 (1982). Therefore, the district court’s order must be vacated and the case remanded to determine whether changed conditions justify modification. The more difficult question concerns the appropriate substantive standard to be applied in making that determination.
The parties do not dispute the court’s authority to dissolve its decree. Inherent in the jurisdiction of a court of equity is the power “to modify an injunction in adaptation to changed conditions, though it was entered by consent.” United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999, 1005 (1932). It matters not whether, as here, the court by the terms of its order reserves the power to revoke or modify it. Id. Thus, “[a] continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.” Id. Congress has approved a codification of this judicial formulation in Rule 60(b)(5), F.R.Civ.P. See 11 Wright & Miller, Federal Practice and Procedure: Civil § 2961, at 599 (1973).
Before exercising its power to modify, a court must be convinced by the party seeking relief that existing conditions differ so substantially from those which precipitated the decree as to warrant judicial adjustment. The parties here sharply dispute the weight of the County’s burden in demonstrating a change in circumstances adequate to justify modification of the consent decree. The Tenants, relying on Swift, insist that the County’s responsibility is a heavy one. The rigorous Swift standard derives from Justice Cardozo’s statement that “a court does not abdicate its power to revoke or modify its mandate if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.” 286 U.S. at 114-15, 52 S.Ct. at 462, 76 L.Ed. at 1006. This standard requires an evaluation of both the continuing need for the injunction as well as the hardship, if any, suffered by the enjoined party:
The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change [the decree].
Id. at 119, 52 S.Ct. at 464, 76 L.Ed. at 1008. According to the Tenants, the County failed to pass the Swift “instrument of wrong” test.
Since Swift, however, the Court has placed less emphasis on the deleterious effects of a decree on the defendant and more on the continuing need for the injunction. See Wright & Miller, supra, at 602. As the Court pointed out in United States v. United Shoe Machinery Corp., 391 U.S. 244, 248, 88 S.Ct. 1496, 1499, 20 L.Ed.2d 562, 566 (1968), “Swift teaches that a decree ... may not be changed in the interests of the defendants if the purposes of the litigation as incorporated in the decree ... have not been fully achieved.” Disregarding the confusing double negative, this restatement of the holding in Swift declared that a defendant can successfully seek modification when an injunction’s purposes have been realized. After United Shoe, the defendant need not be a victim of oppression before a court can grant relief from its earlier judgment. As this court stated, “the job of a district court after Swift and United Shoe is to look at the particular facts and circumstances of the ease to determine whether the modification satisfies the underlying purpose of the decree.” Williams v. Butz, 843 F.2d 1335, 1338 (11th Cir.) reh. denied, 854 F.2d 1326 (1988).
In this circuit, Swift plays a distinguished but diminished role. We have limited the decision in a manner which lessens its influence considerably. In Newman v. Graddick, 740 F.2d 1513 (11th Cir.1984), this court construed a statement in Justice Cardozo’s opinion which drew a “distinction ... between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative.” Swift, 286 U.S. at 114, 52 S.Ct. at 462, 76 L.Ed. at 1005-06, cited by New man, 740 F.2d at 1520. The court concluded that the Supreme Court had characterized the injunction at issue in Swift as one of the former variety, requiring the stringent test. “Where, however, a consent decree involves the supervision of changing conduct or conditions and is therefore provisional, modification may be more freely granted.” Newman, 740 F.2d at 1520; accord, Nelson v. Collins, 659 F.2d 420, 423-24 (4th Cir.1981) (en banc). This reading of Swift requires elaboration, however. In the pertinent passage, Justice Cardozo failed to explain precisely the import of the distinction drawn. The resulting ambiguity raises the question whether the distinction to which Justice Cardozo referred is between two types of decrees which are subject to modification, or rather between those decrees which may be modified and those decrees which may not. Under the first interpretation, the one preferred by the courts in Nelson and Newman, the distinction is significant because it determines whether the stringent standard announced by the Court in Swift is to be applied, or whether an unspecified, less rigorous test is appropriate. Contrast that with the second interpretation, an alternative which permits only one test — the strict one. Under that reading, the distinction is not relevant to the selection of a test. Rather, it determines whether the court has power to modify a particular decree. All decrees susceptible to changing conditions are, under this construction, subject to the same tough test. The former Fifth Circuit Court of Appeals expressed this latter view in Cook v. Birmingham News, 618 F.2d 1149, 1152 (5th Cir.1980). See also, Twelve John Does v. District of Columbia, 841 F.2d 1133, 1139 (D.C.Cir.1988). Because the language under consideration appears in a paragraph concerned with the court’s power to modify (as opposed to the showing needed to justify the court’s exercise of that power, a subject dealt with in succeeding paragraphs), the first reading, while plausible, is less persuasive than the second.
The Fifth Circuit Court of Appeals avoided the largely academic discussion speculating as to what exactly Justice Cardozo meant and harmonized Newman — which considered court orders requiring the release of prisoners from overcrowded prison facilities — and Nelson as decisions consistent with several others announcing “a less demanding standard for modification of consent decrees ... within the institutional reform arena.” Ruiz v. Lynaugh, 811 F.2d 856, 861 (5th Cir.1987) (citing also New York State Association for Retarded Children, Inc. v. Carey, 706 F.2d 956, 970 (2d Cir.), cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257 (1983); United States v. City of Chicago, 663 F.2d 1354, 1359-60 (7th Cir.1981) (en banc); Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114, 1120-21 (3d Cir.1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 689, 62 L.Ed.2d 660 (1980); and Benjamin v. Malcolm, 564 F.Supp. 668, 686 (S.D.N.Y.1983)). In Carey, the Second Circuit declared, “It is well recognized that in institutional reform litigation ... judicially-imposed remedies must be open to adaptation when unforeseen obstacles present themselves, to improvement when a better understanding of the problem emerges, and to accommodation of a wider constellation of interests than is represented in the adversarial setting of the courtroom.” Carey, 706 F.2d at 969. Thus, where a decree is the product of institutional reform an application for the modification of such decree “should ... be viewed with generosity,” id. at 971, and granted “with a rather free hand.” Id. at 970. The retreat from Swift in Nelson and Newman probably is better explained by the institutional reform rationale than by a critical analysis of Justice Cardozo’s prose. In any event, Newman remains the law of this circuit.
The County believes that the injunction here is of the provisional sort, and that, therefore, under Newman it did not need to make the showing required by Swift. We agree. The injunction here is a continuing decree intended to effect institutional reform. By its terms, the order requires ongoing court supervision, and therefore it is provisional. Thus, Newman, and not Swift, controls, and modification may be granted more freely.
This is not to say that relief is available at the County’s pleasure. Certainly the district court must exercise judicious discretion in deciding whether to modify its earlier decree. But although “there must be wide discretion in the District Court,” System Federation No. 91 v. Wright, 364 U.S. 642, 648, 81 S.Ct. 368, 371, 5 L.Ed.2d 349, 353 (1961), judicial discretion is bounded, and we believe our decision in Butz, supra, offers guidance in locating the limits of discretion appropriate in the instant case.
In Butz, the Farmers Home Administration (“FmHA”) appealed the district court’s denial of its motion to modify a consent decree which required the federal agency to use only judicial proceedings to foreclose mortgages on homes purchased under a federal loan program. Butz, 843 F.2d at 1336. The FmHA argued that new federal statutes and regulations had cured the due process default which had given rise to the consent decree, and it sought to alter the order to allow it to conduct foreclosure proceedings pursuant to the regulations. Unlike the consent decrees, the regulations permitted nonjudicial foreclosure proceedings. The district court refused to modify the injunction, holding that “the FmHA neither submitted evidence that the decree violated constitutional, statutory or deci-sional law, which would render it invalid, nor showed ‘the kind of extreme, unexpected oppression and hardship which would justify modification of the Court’s decree.’ ” Id. On appeal, this court, after reviewing Swift and United Shoe, vacated • and remanded, concluding that the district court had applied the wrong legal principles.
Rather than focusing on the hardship to the defendant, the court wrote in Butz, the district court must discern the underlying purpose of the decree and decide whether modification would be consistent with that purpose. Id. at 1338. The objective of the decree in Butz was to secure for borrowers under the federal program procedural due process in foreclosure proceedings. Therefore, if the decree were vacated, the new federal laws would have to guarantee that the FmHA comply with procedural due process, lest the decree’s goal be abandoned. The court did not question that a change in the law which obligated the enjoined party to act in a manner not contrary to the command of the court order constituted a proper basis for modification:
A change in relevant statutory law— such as in this case where Congress required that the FmHA ensure by regulation that due process rights are afforded to borrowers and regulations are promulgated in compliance with that mandate— is a fully adequate basis upon which modification to a consent decree may be based.
Id.
The court concluded by studying the new federal statute, which required the FmHA to promulgate regulations establishing an administrative appeals procedure designed to correct due process deficiencies. It found that the congressional enactment did “not conflict with the underlying purpose of the consent decree.” Id. at 1339. However, the court reasoned that the decree conflicted with the federal law “by depriving the FmHA of a choice that Congress intended it should be able to exercise.” Id. Thus, the court remanded to allow the district court to determine whether the FmHA had complied with the statute and promulgated regulations comporting with constitutional due process. If it answered the question in the affirmative, then the district court was instructed to vacate or modify the injunction so as to permit the FmHA to employ nonjudicial foreclosure proceedings.
This case is similar to Butz. Here we are faced with a continuing injunction much like the one in that case with respect to purpose. The underlying reason for the present decree is to force the County to afford public housing tenants procedural due process in the collection of maintenance charges. As in Butz, a subsequent congressional enactment presently requires the appropriate federal agency (HUD) to promulgate regulations directing local PHAs such as the County to adopt administrative grievance procedures including the basic elements of due process — notice and opportunity for a fair hearing. HUD has complied, promulgating regulations setting forth the requirements, standards and criteria with which public housing authorities must comply when fashioning their own regulations governing grievance procedures. The County in turn has obeyed the federal regulatory scheme, adopting the requisite rules. In addition, the County, pursuant to the consent decree, has adopted specific notice provisions, requirements not explicitly provided for in the regulations.
Applying Butz, we first note that the federal regulatory scheme is not contrary to the underlying purpose of the consent decree. Both are intended to ensure that procedural due process will not be ignored. However, the decree conflicts with the federal laws, because the consent order mandates special notice requirements not imposed by Congress or HUD. On remand, the district court should first determine whether compliance with the federal laws necessarily satisfies due process. If so, the court can dissolve the injunction, because in that event the decree merely compels an outcome consistent with the one demanded by the federal statute and regulations. That the County might alter its grievance procedure following dissolution of the injunction is not significant, as long as any regulations adopted by the County conform to the requirements of the federal laws and procedural due process. Congress and HUD have permitted PHAs some discretion in establishing such procedures, and the Tenants cannot insist on additional or unique protection of their rights absent constitutional fault. Id. at 1339. See System Federation No. 91, 364 U.S. at 648, 81 S.Ct. at 371-72, 5 L.Ed.2d at 354.
If the district court finds that compliance with the federal regulatory scheme would not satisfy due process, a second series of questions will arise, because the County’s existing regulations fulfill the demands of due process. Therefore, if the district court determines that the criteria and standards contained in the federal regulations do not meet the minimum requirements of due process, then it should consider whether the County, if relieved of the consent decree’s burden, would quickly repeal its current regulations and promulgate new, constitutionally deficient procedural rules. Were it persuaded that the County would not immediately discard its current rules, and in addition were it convinced that the County could reasonably be anticipated to abide by such rules, the district court might then find that the County no longer need be ordered to obey these regulations. See Tobin v. Alma Mills, 192 F.2d 133, 136 (4th Cir.1951), cert. denied, 343 U.S. 933, 72 S.Ct. 769, 96 L.Ed. 1342 (1952). On the other hand, if the federal regulatory regimen does not protect adequately the procedural due process rights of public housing tenants, then dissolution of the consent decree would be inappropriate provided the district court also were to find either that (1) the County would then implement constitutionally deficient procedures; or (2) the County would then repeatedly violate its existing regulations. Such conduct would result same deprivations which prompted the original suit, necessitating new actions to remedy individual constitutional violations.
VACATED AND REMANDED.
. A "grievance” is "any dispute which a tenant may have with respect to PHA action or failure to act in accordance with the individual tenant’s lease or PHA regulations which adversely affect the individual tenant’s rights, duties, welfare or status.” 24 C.F.R. § 966.53(a) (1988).
. The amended consent order instructs the County to include in the notice statement the following message: IF YOU THINK THAT THE DAMAGE OR LOSS DESCRIBED ABOVE IS NOT YOUR FAULT, OR NOT THE FAULT OF A MEMBER OF YOUR FAMILY OR A PERSON VISITING YOU OR YOUR FAMILY OR THAT YOU ARE BEING CHARGED TOO MUCH FOR IT, THEN:
1. GO TO THE MANAGER OF YOUR PROJECT AND TELL HIM YOUR COMPLAINT.
2. IF YOU ARE NOT SATISFIED WITH THE MANAGER’S RESPONSE, YOU SHOULD FILL IN THE WRITTEN GRIEVANCE FORM AVAILABLE IN THE MANAGER’S OFFICE. HUD WILL RESPOND IN WRITING TO YOU. IF YOU ARE NOT SATISFIED WITH HUD’S WRITTEN RESPONSE TO YOUR GRIEVANCE, YOU MAY ASK FOR A HEARING BY SENDING A WRITTEN REQUEST TO HUD WITHIN 10 DAYS OF RECEIVING HUD’S WRITTEN ANSWER TO YOUR GRIEVANCE.
YOU MAY HAVE AN ATTORNEY AND/OR FRIEND OR RELATIVE REPRESENT YOU AT THE HEARING.
This statement and a Spanish translation of it appear in both the County's "General Maintenance And Repair Order” and its "Emergency Maintenance And Repair Order.”
. In paragraph 4 of the amended consent order the district court "specifically retain[ed] jurisdiction of the cause to enter such further and additional relief as is just, equitable and necessary for the enforcement of the Order.”
. Rule 60(b) provides that “[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (5) ... it is no longer equitable that the judgment should have prospective application.”
. From the institutional reform cases the Fifth Circuit distilled the elements of a more flexible standard, which in Ruiz it did not have occasion to expressly adopt, applied by courts in such circumstances:
If the defendant (1) can establish some change in circumstances has occurred from the time the decree was negotiated and approved; (2) convince the court that it has attempted to comply with the decree in good faith; and (3) asks for a modification that does not frustrate the original and overall purpose(s) of the decree, then the court may grant modification.
Ruiz, 811 F.2d at 861 n. 8.
. The constitutionality of the County’s existing procedures is not an issue in this case. In the third paragraph of the amended consent order the district court held "that such procedures are in conformity with the requirements of procedural due process of law as required by the Fourteenth Amendment to the Constitution of the United States.” Neither party challenges this determination.
Question: This question concerns the second 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
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sc_certreason
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
BOARD OF ESTIMATE OF CITY OF NEW YORK et al. v. MORRIS et al.
No. 87-1022.
Argued December 7, 1988
Decided March 22, 1989
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Marshall, O’Connor, Scalia, and Kennedy, JJ., joined. Brennan, J., filed an opinion concurring in part and concurring in the judgment, in which Stevens, J., joined, post, p. 703. Blackmun, J., filed an opinion concurring in part and concurring in the judgment, post, p. 703.
Peter L. Zimroth argued the cause for appellants in both cases. With him on the briefs for appellants in No. 87-1022 were Leonard J. Koemer, Jeffrey D. Friedlander, Stephen J. McGrath, and Fay Leoussis. Philip G. Minardo filed briefs for appellant in No. 87-1112.
Richard D. Emery argued the cause for appellees in both cases. With him on the brief were Paul W. Kahn, Arthur N. Eisenberg, John A. Powell, and Steven R. Shapiro.
Together with No. 87-1112, Ponterio v. Morris et al., also on appeal from the same court.
Briefs of amici curiae urging reversal were filed for the Staten Island League for Better Government by Michael Weinberger; for Abraham D. Beame et al. by Edivard N. Costikyan, Simon H. Rifkind, and Gerard E. Harper; and for John J. Marchi by Mr. Marchi, pro se, and David Jaffe.
Briefs of amici curiae urging affirmance were filed for the Citizens Union of the city of New York by John V. Lindsay, Donald J. Cohn, and Alan Rothstein; and for Peter F. Vallone et al. by Mr. Vallone, pro se, and Susan Belgard.
John F. Banzhaf III, pro se, filed a brief as amicus curiae.
Justice White
delivered the opinion of the Court.
The Board of Estimate of the City of New York consists of three members elected city wide, plus the elected presidents of each of the city’s five boroughs. Because the boroughs have widely disparate populations — yet each has equal representation on the board — the Court of Appeals for the Second Circuit held that this structure is inconsistent with the Equal Protection Clause of the Fourteenth Amendment. We affirm.
Appellees, residents and voters of Brooklyn, New York City’s most populous borough, commenced this action against the city in December 1981. They charged that the city’s charter sections that govern the composition of the Board of Estimate are inconsistent with the Equal Protection Clause of the Fourteenth Amendment as construed and applied in various decisions of this Court dealing with districting and apportionment for the purpose of electing legislative bodies. The District Court dismissed the complaint, 551 F. Supp. 652 (EDNY 1982), on the ground that the board was not subject to the rule established by Reynolds v. Sims, 377 U. S. 533 (1964), its companion cases, and its progeny, such as Abate v. Mundt, 403 U. S. 182 (1971), because in its view the board is a nonelective, nonlegislative body. The Court of Appeals reversed. 707 F. 2d 686 (CA2 1983). Because all eight officials on the board ultimately are selected by popular vote, the court concluded that the board’s selection process must comply with the so-called “one-person, one-vote” requirement of the reapportionment cases. The court remanded to the District Court to ascertain whether this compliance exists. Bifurcating the proceedings, the District Court determined first, that applying this Court’s methodology in Abate v. Mundt, supra, to the disparate borough populations produced a total deviation of 132.9% from voter equality among these electorates, 592 F. Supp. 1462 (EDNY 1984); and second, that the city’s several explanations for this range neither require nor justify the electoral scheme’s gross deviation from equal representation. 647 F. Supp. 1463 (EDNY 1986). The court thus found it unnecessary to hold that the deviation it identified was per se unconstitutional.
The Court of Appeals affirmed. 831 F. 2d 384 (CA2 1987). Tracing the imperative of each citizen’s equal power to elect representatives from Reynolds v. Sims to Abate v. Mundt and beyond, the court endorsed the District Court’s focus on population per representative. The court held that the presence of the citywide representatives did not warrant departure from the Abate approach and that the District Court’s finding of a 132% deviation was correct. Without deciding whether this gross deviation could ever be justified in light of the flexibility accorded to local governments in ordering their affairs, the Court of Appeals, agreeing with the District Court, held inadequate the city’s justifications for its departure from the equal protection requirement that elective legislative bodies be chosen from districts substantially equal in population, especially since alternative measures could address the city’s valid policy concerns and at the same time lessen the discrimination against voters in the more populous districts. We noted probable jurisdiction in both Nos. 87-1022 and 87-1112, 485 U. S. 986 (1988).
As an initial matter, we reject the city’s suggestion that because the Board of Estimate is a unique body wielding non-legislative powers, board membership elections are not subject to review under the prevailing reapportionment doctrine. The equal protection guarantee of “one-person, one-vote” extends not only to congressional districting plans, see Wesberry v. Sanders, 376 U. S. 1 (1964), not only to state legislative districting, see Reynolds v. Sims, supra, but also to local government apportionment. Avery v. Midland County, 390 U. S. 474, 479-481 (1968); Abate v. Mundt, supra, at 185. Both state and local elections are subject to the general rule of- population equality between electoral districts. No distinction between authority exercised by state assemblies, and the general governmental powers delegated by these assemblies to local, elected officials, suffices to insulate the latter from the standard of substantial voter equality. See Avery v. Midland County, supra, at 481. This was confirmed in Hadley v. Junior College Dist. of Metropolitan Kansas City, 397 U. S. 50 (1970):
“[W]henever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.” Id., at 56.
These cases are based on the propositions that in this country the people govern themselves through their elected representatives and that “each and every citizen has an inalienable right to full and effective participation in the political processes” of the legislative bodies of the Nation, State, or locality as the case may be. Reynolds v. Sims, 377 U. S., at 565. Since “[m]ost citizens can achieve this participation only as qualified voters through the election of legislators to represent them,” full and effective participation requires “that each citizen have an equally effective voice in the election of members of his . . . legislature.” Ibid. As Daniel Webster once said, “the right to choose a representative is every man’s portion of sovereign power.” Luther v. Borden, 7 How. 1, 30 (1849) (statement of counsel). Electoral systems should strive to make each citizen’s portion equal. If districts of widely unequal population elect an equal number of representatives, the voting power of each citizen in the larger constituencies is debased and the citizens in those districts have a smaller share of representation than do those in the smaller districts. Hence the Court has insisted that seats in legislative bodies be apportioned to districts of substantially equal populations. . Achieving “‘fair and effective representation of all citizens is . . . the basic aim of legislative apportionment,’ [Reynolds, supra], at 565-566; and [it is] for that reason that [Reynolds] insisted on substantial equality of populations among districts.” Gaffney v. Cummings, 412 U. S. 735, 748 (1978).
That the members of New York City’s Board of Estimate trigger this constitutional safeguard is certain. All eight officials become members as a matter of law upon their various elections. New York City Charter §61 (1986). The mayor, the comptroller, and the president of the city council, who constitute the board’s citywide number, are elected by votes of the entire city electorate. Each of these three cast two votes, except that the mayor has no vote on the acceptance or modification of his budget proposal. Similarly, when residents of the city’s five boroughs — the Bronx, Brooklyn, Manhattan, Queens, and Richmond (Staten Island) — elect their respective borough presidents, the elections decide each borough’s representative on the board. These five members each have single votes on all board matters.
New York law assigns to the board a significant range of functions common to municipal governments. Fiscal responsibilities include calculating sewer and water rates, tax abatements, and property taxes on urban development projects. The board manages all city property; exercises plenary zoning authority; dispenses all franchises and leases on city property; fixes generally the salaries of all officers and persons compensated through city moneys; and grants all city contracts. This array of powers, which the board shares with no other part of the New York City government, are exercised through the aforementioned voting scheme: three citywide officials cast a total of six votes; their five borough counterparts, one vote each.
In addition, and of major significance, the board shares legislative functions with the city council with respect to modifying and approving the city’s capital and expense budgets. The mayor submits a proposed city budget to the board and city council, but does not participate in board decisions to adopt or alter the proposal. Approval or modification of the proposed budget requires agreement between the board and the city council. Board votes on budget matters, therefore, consist of four votes cast by two at-large members; and five, by the borough presidents.
This considerable authority to formulate the city’s budget, which last fiscal year surpassed $25 billion, as well as the board’s land use, franchise, and contracting powers over the city’s 7 million inhabitants, situate the board comfortably within the category of governmental bodies whose “powers are general enough and have sufficient impact throughout the district” to require that elections to the body comply with equal protection strictures. See Hadley v. Junior College Dist., 397 U. S. at 54.
The city also erroneously implies that the board’s composition survives constitutional challenge because the citywide members cast a 6-to-5 majority of board votes and hence are in position to control the outcome of board actions. The at-large members, however, as the courts below observed, often do not vote together; and when they do not, the outcome is determined by the votes of the borough presidents, each having one vote. Two citywide members, with the help of the presidents of the two least populous boroughs, the Bronx and Staten Island, will prevail over a disagreeing coalition of the third citywide member and the presidents of the three boroughs that contain a large majority of the city’s population. Furthermore, because the mayor has no vote on budget issues, the city wide members alone cannot control board budgetary decisions.
The city’s primary argument is that the courts below erred in the methodology by which they determined whether, and to what extent, the method of electing the board members gives the voters in some boroughs more power than the voters in other boroughs. Specifically, the city focuses on the relative power of the voters in the various boroughs to affect board decisions, an approach which involves recognizing the weighted voting of the three citywide members.
As described by the Court of Appeals, 831 F. 2d, at 386, n. 2 (the city’s description is essentially the same, Brief for Municipal Appellants 35-36), the method urged by the city to determine an individual voter’s power to affect the outcome of a board vote first calculates the power of each member of the board to affect a board vote, and then calculates voters’ power to cast the determining vote in the election of that member. This method, termed the Banzhaf Index, applies as follows: 552 possible voting combinations exist in which any one member can affect the outcome of a board vote. Each borough president can cast the determining vote in 48 of these combinations (giving him a “voting power” of 8.7%), while each citywide member can determine the outcome in 104 of 552 combinations (18.8%). A citizen’s voting power through each representative is calculated by dividing the representative’s voting power by the square root of the population represented; a citizen’s total voting power thus aggregates his power through each of his four representatives — borough president, mayor, comptroller, and council president. Deviation from ideal voting power is then calculated by comparing this figure with the figure arrived at when one considers an electoral district of ideal population. Calculated in this manner, the maximum deviation in the voting power to control board outcomes is 30.8% on nonbudget matters, and, because of the mayor’s absence, a higher deviation on budget issues.
The Court of Appeals gave careful attention to and rejected this submission. We agree with the reasons given by the Court of Appeals that the population-based approach of our cases from Reynolds through Abate should not be put aside in this litigation. We note also that we have once before, although in a different context, declined to accept the approach now urged by the city. Whitcomb v. Chavis, 403 U. S. 124 (1971). In that case we observed that the Banzhaf methodology “remains a theoretical one” and is unrealistic in not taking into account “any political or other factors which might affect the actual voting power of the residents, which might include party affiliation, race, previous voting characteristics or any other factors which go into the entire political voting situation.” Id., at 145-146.
The personal right to vote is a value in itself, and a citizen is, without more and without mathematically calculating his power to determine the outcome of an election, shortchanged if he may vote for only one representative when citizens in a neighboring district, of equal population, vote for two; or to put it another way, if he may vote for one representative and the voters in another district half the size also elect one representative. Even if a desired outcome is the motivating factor bringing voters to the polls, the Court of Appeals in this case considered the Banzhaf Index an unrealistic approach to determining whether citizens have an equal voice in electing their representatives because the approach tends to ignore partisanship, race, and voting habits or other characteristics having an impact on election outcomes.
The Court of Appeals also thought that the city’s approach was “seriously defective in the way it measures Board members’ power to determine the outcome of a Board vote.” 831 F. 2d, at 390. The difficulty was that this method did not reflect the way the board actually works in practice; rather, the method is a theoretical explanation of each board member’s power to affect the outcome of board actions. It may be that in terms of assuring fair and effective representation, the equal protection approach reflected in the Reynolds vJ Sims line of cases is itself imperfect, but it does assure thaü legislators will be elected by, and represent citizens in, dis-l tricts of substantially equal size. It does not attempt to inquire whether, in terms of how the legislature actually works in practice, the districts have equal power to affect a legislative outcome. This would be a difficult and ever-changing task, and its challenge is hardly met by a mathematical calculation that itself stops short of examining the actual day-today operations of the legislative body. The Court of Appeals in any event thought there was insufficient reason to depart from our prior cases, and we agree.
Having decided to follow the established method of resolving equal protection issues in districting and apportionment cases, the Court of Appeals then inquired whether the presence of at-large members on the board should be factored into the process of determining the deviation between the more and less populous boroughs. The court decided that they need not be taken into account because the at-large members and the borough presidents respond to different constituencies. The three at-large members obviously represent citywide interests; but, in the Court of Appeals’ judgment, the borough presidents represent and are responsive to their boroughs, yet each has one vote despite the dramatic inequalities in the boroughs’ populations. Consideration of the citywide members might be different, the court explained, “[i]f the at-large bloc was not simply a majority, but a majority such that it would always and necessarily control the governing body, and the district representatives play a decidedly subsidiary role . . . .” 831 F. 2d, at 389, n. 5. Like Judge Newman in concurrence, however, the court noted that this was decidedly not true of the board.
The Court of Appeals then focused on the five boroughs as single-member districts, electing five representatives to the board, each with a single vote. Applying the formula that we have utilized without exception since 1971, see Abate v. Mundt, 403 U. S., at 184 and n. 1; Gaffney v. Cummings, 412 U. S., at 737; Brown v. Thomson, 462 U. S. 835 (1983), the Court of Appeals agreed with the District Court that the maximum percentage deviation from the ideal population is 132.9%.
We do not agree with the Court of Appeals’ approach. In calculating the deviation among districts, the relevant inquiry is whether “the vote of any citizen is approximately equal in weight to that of any other citizen,” Reynolds v. Sims, 377 U. S., at 579, the aim being to provide “fair and effective representation for all citizens,” id., at 565-566. Here the voters in each borough vote for the at-large members as well as their borough president, and they are also represented by those members. Hence in determining whether there is substantially equal voting power and representation, the citywide members are a major component in the calculation and should not be ignored.
Because of the approach followed by the District Court and the Court of Appeals, there was no judicial finding concerning the total deviation from the ideal that would be if the at-large members of the board are taken into account. In pleadings filed with the District Court, however, appellees indicated, and the city agreed, that the deviation would then be 78%. See App. 47, 206, 375-376. This deviation was confirmed at oral argument. Tr. of Oral Arg. 14-15, 39-40. And as to budget matters, when only two citywide members participate, the deviation would be somewhat larger. We accept for purposes of this case the figure agreed upon by the parties.
We note that no case of ours has indicated that a deviation of some 78% could ever be justified. See Brown v. Thomson, supra, at 846-847; Connor v. Finch, 431 U. S. 407, 410-420 (1977); Chapman v. Meier, 420 U. S. 1, 21-26 (1975); Mahan v. Howell, 410 U. S. 315, 329 (1973). At the very least, the local government seeking to support such a difference between electoral districts would bear a very difficult burden, and we are not prepared to differ with the holding of the courts below that this burden has not been carried. The city presents in this Court nothing that was not considered below, arguing chiefly that the board, as presently structured, is essential to the successful government of a regional entity, the City of New York. The board, it is said, accommodates natural and political boundaries as well as local interests. Furthermore, because the board has been effective it should not be disturbed. All of this, the city urges, is supported by the city’s history. The courts below, of course, are in a much better position than we to assess the weight of these arguments, and they concluded that the proffered governmental interests were either invalid or were not sufficient to justify a deviation of 132%, in part because the valid interests of the city could be served by alternative ways of constituting the board that would minimize the discrimination in voting power among the five boroughs. Their analysis is equally applicable to a 78% deviation, and we conclude that the city’s proffered governmental interests do not suffice to justify such a substantial departure from the one-person, one-vote ideal.
Accordingly the judgment of the Court of Appeals is
Affirmed.
Appellants in No. 87-1022 are New York City, the city’s Board of Estimate, the board’s eight members, and intervenor-defendant Robert Stra-niere, a New York State Assembly member. Frank Ponterio, a resident of Staten Island, and an intervening defendant below, is the appellant in No. 87-1112.
Section 61 of the New York City Charter (1986) reads: “Membership. The mayor, the comptroller, the president of the council, and the presidents of the boroughs shall constitute the board of estimate.” Section 62 reads: “Voting in the Board, a. As members of the board of estimate, the mayor, the comptroller and the president of the council shall each be entitled to cast two votes, and the president of each borough shall be entitled to east one vote. b. Except as otherwise provided in this charter or by law, the board shall act by resolution adopted by a majority of the whole number of votes authorized to be cast by all the members of the board. . . . d. A quorum of the board shall consist of a sufficient number of members thereof to cast six votes, including at least two of the members authorized to east two votes each.” Section 120(d) provides that the mayor may not vote as a board member when the adoption or modification of his proposed budget is at issue.
The municipal appellants and intervenor-appellant Straniere served and filed notices of appeal on October 15, 1987, and November 6, 1987, respectively. Intervenor-appellant Ponterio served and filed his notice of appeal on December 16, 1987.
The District Court correctly observes that the board’s powers are set forth in the city charter, state legislation, and the New York City Administrative Code. Plaintiffs-appellees submitted to the District Court the following list of board powers:
“A. The Board of Estimate exclusively
“i. determines the use, development and improvement of property owned by the City;
“ii. approves standards, scopes and final designs of capitol [sic] projects for the City;
“iii. negotiates and enters into all contracts on behalf of the City;
“iv. negotiates and approves all franchises that are granted by the City;
“v. grants leases of City property and enters into leases of property for City use;
“vi. sets the rates for purchases of water from the City;
“vii. sets the charges for sewer services provided by the City;
“viii. approves or modifies all zoning decisions for the City; and
“ix. sets tax abatements.
“B. The Board of Estimate acting in conjunction with the New York City Council
“i. recommends and approves the expense budget of the City without the participation of the Mayor;
“ii. recommends and approves the capital budget of the City without the participation of the Mayor;
“iii. periodically modifies the budgets of the City;
“iv. confers with the City Council when agreement on the budget between the two bodies is not reached;
“v. overrides mayoral vetoes of budget items without the participation of the Mayor; and
“vi. holds hearings on budgetary matters.
“C. The Board of Estimate also
“i. administers the Bureau of Franchises;
“ii. administers the Bureau of the Secretary;
“iii. holds public hearings on any matter of City policy within its responsibilities whenever called upon to do so by the Mayor or in its discretion for the public interest;
“iv. holds hearings on tax abatements that are within the discretion of City administrative agencies; and
“v. makes recommendations to the Mayor or City Council in regard to any matter of City policy. ” Statement of Facts Pursuant to Local Rule 9(g) in No. 8-CV-3920 (EDNY), App. 44-46.
See also W. H. K. Communications Associations, Inc., The Structure, Powers, and Functions of New York City’s Board of Estimate (1973), App. 54 (Kramarsky Study).
Similarly, we reject appellant Ponterio’s submission, which disagrees with both the Court of Appeals and the city. Ponterio puts aside a citizens’ theoretical ability to cast a tie-breaking vote for their representative and focuses only on each borough representative’s tie-breaking power on the board. Brief for Appellant Ponterio in No. 87-1112, pp. 17-23. The formula suffers from the criticisms applicable to the Banzhaf Index generally. Ponterio’s argument in some ways is also inconsistent with our insistence that the equal protection analysis in this context focuses on representation of people,, not political or economic interests. See, e. g., Reynolds v. Sims, 377 U. S. 533, 561, 562 (1964); Dunn v. Blumstein, 405 U. S. 330, 336 (1972).
The Court of Appeals writes: “Though the appellant Board insists on referring to ‘an at-large majority voting bloc,’ in fact there is no such ‘bloc.’ Rather, this supposed ‘bloc’ consists of three persons having two votes each who are free to, and do, vote on different sides of various issues. Only if all three vote together are they bound to carry the day. Furthermore, on certain budget issues, on which the mayor does not vote, the at-large members cannot win a vote without the support of a borough president. It follows that there is no majority-at-large voting bloc bound to control the Board and that this case is far removed from the hypotheticals offered by the Board and Amicus Banzhaf.” 831 F. 2d, at 389, n. 5 (citation omitted).
That percentage is the sum of the percentage by which Brooklyn, the city’s most populous district (population 2,230,936), exceeds the ideal district population (1,414,206), and the percentage by which Staten Island, the least populous (352,151), falls below this ideal. Queens’ population was stipulated to be 1,891,325; Manhattan’s, 1,427,533; and the Bronx’s, I,169,115. The parties stipulated, therefore, that the city’s total population is 7,071,030. See App. to Juris. Statement in No. 87-1112, pp. 9-10, II.
Appellees point out that in Avery v. Midland County, 390 U. S. 474 (1968), we struck down a county apportionment scheme consisting of four district representatives and one at-large member without considering the effect of the at-large representative. In that case, however, we were not faced with the task of determining the disparity in voting power among districts of different population; the issue before the Court was whether our decision in Reynolds v. Sims, requiring that state legislatures be apportioned on the basis of population, applied as well to local government legislative bodies. 390 U. S., at 478-479. Nothing in Avery even remotely suggests that the impact of at-large representatives is to be ignored in determining whether an apportionment scheme violates the Equal Protection Clause.
At oral argument in this Court, the city conceded this point: “QUESTION: ... If we use the Abate method and took the three at-large officers and factored them into the analysis, what would the population deviation be? Or can we not determine that based on this record? Mr. ZIMROTH [counsel for the city]: It depends on how you factor them in. There’s one way of factoring them in which would divide the number of city-wide votes proportionately among all of the counties [sic], ... If you use that method, you come up with a number of 76 [sic] percent. . . . [T]hat’s the answer to your question. That’s the result you get if you use that methodology.” Tr. of Oral Arg. 14-15. Appellees’ counsel also stated that the deviation “came to 78 percent when you allocated that way.” Id., at 39-40. Although Ponterio rejected the 78% figure in the District Court, he did so only in reliance on his modified Banzhaf test. For reasons already stated, that reliance is misplaced.
We note also that we are not persuaded by arguments that explain the debasement of citizens’ constitutional right to equal franchise based on exigencies of history or convenience. See Reynolds, 377 U. S., at 579-580 (“Citizens, not history or economic interests, cast votes”); see also Maryland Committee for Fair Representation v. Tawes, 377 U. S. 656, 675 (1964); Lucas v. Forty-Fourth Colorado General Assembly, 377 U. S. 713, 738 (1964).
We are not presented with the question of the constitutionality of the alternative board structures suggested by the District Court and the Court of Appeals.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_weightev
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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 factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Leo MANTIN, Appellant, v. BROADCAST MUSIC, Inc., a corporation, et al., Appellees.
No. 15188.
United States Court of Appeals Ninth Circuit.
May 3, 1957.
Fendler & Lerner, Beverly Hills, Cal., for appellant.
Wright, Wright, Green & Wright, Edgar R. Carver, Jr., Los Angeles, Cal., for appellees.
Before MATHEWS, FEE and CHAMBERS, Circuit Judges.
MATHEWS, Circuit Judge.
On January 19, 1955, in the United States District Court for the Southern District of California, Leo Mantin, hereafter called plaintiff, brought a civil action against 34 defendants — 5 individuals 1 and 29 corporations. No answer was filed by any of the defendants. Instead, 6 of the corporate defendants moved to dismiss the action on the ground that the complaint failed to state a claim upon which relief could be granted. The District Court granted the motion and on May 14,1956, entered a judgment dismissing the action. Plaintiff has appealed from the judgment.
The judgment was a final decision of the District Court. No direct review thereof could be had in the Supreme Court. The appeal was taken within 30 days after the entry of the judgment. We therefore have jurisdiction of the appeal.
The question now to be considered is whether the District Court had jurisdiction of the action. Though not raised by the parties, the question is here and must be determined.
The complaint stated that the District Court had jurisdiction of the action under and by virtue of 28 U.S. C.A. § 1332. That, however, was a mere statement of a conclusion — a conclusion which the factual allegations of the complaint did not warrant.
It appeared from the complaint that the matter in controversy exceeded the sum or value of $3,000, exclusive of interest and costs, but it did not appear that the matter in controversy was between citizens of different States or between citizens of a State and foreign states or citizens or subjects thereof.
The complaint alleged, in substance, that all of the individual defendants were citizens of States other than California; that 18 of the corporate defendants were corporations of States other than California; and that all of the other corporate defendants were corporations of States other than California or were corporations of foreign states. Therefore, if the complaint had alleged that plaintiff was a citizen of California, it would have appeared that the District Court had jurisdiction of the action under 28 U.S.C.A. § 1332. However, the complaint did not so allege.
The complaint alleged that plaintiff was “a professional entertainer and composer residing in the County of Los Angeles, State of California.” That, however, cannot be regarded as an allegation that plaintiff was a citizen of California. Residence and citizenship are not the same thing.
The complaint did not allege or attempt to allege jurisdiction under any statute other than 28 U.S.C.A. § 1332. It did attempt to allege jurisdiction under § 1332, but, as indicated above, its jurisdictional allegations were defective in that they did not include an allegation that plaintiff was a citizen of California.
However, it may well be that, in truth and in fact, plaintiff was at the commencement of this action, and still is, a citizen of California. If so, he may desire to move this court for leave to amend in this court the jurisdictional allegations of the complaint, pursuant to 28 U.S.C.A. § 1653. Therefore, if he
so desires, plaintiff may file such a motion with the clerk of this court within 20 days after the filing of this opinion.
Such motion, if filed, shall be verified by plaintiff; shall state positively and specifically whether plaintiff was at the commencement of this action, and still is, a citizen of California; shall set out, in haec verba, any proposed amendment or amendments; and shall, in all respects, conform to the requirements of this court’s Rule 15, 28 U.S.C.A.
. The individual defendants were sued as Doe One, Doe Two, Doe Three, Doe Four and Doe Five.
. Broadcast Music, Inc., and 28 others, 10 of which were sued as Doe One Corporation, Doe Two Corporation, etc.
. Broadcast Music, Inc., and 5 others.
. See Rule 12(b) (6) of the Federal Rules of Civil Procedure, 28 U.S.C.A.
. See 28 U.S.C.A. §§ 1291, 1294 and 2107.
. Southern Pacific Co. v. McAdoo, 9 Cir., 82 F.2d 121; Electro Therapy Products Corp. v. Strong, 9 Cir., 84 F.2d 766; Gavica v. Donaugh, 9 Cir., 93 F.2d 173; Royalty Service Corp. v. City of Los Angeles, 9 Cir., 98 F.2d 551; Minnis v. Southern Pacific Co., 9 Cir., 98 F.2d 913; Alexander v. Westgate-Greenland Oil Co., 9 Cir., 111 F.2d 769; Cheyne v. Atchison, T. & S. F. Ry. Co., 9 Cir., 125 F.2d 49; Jones v. Brush, 9 Cir., 143 F.2d 733; Tipton v. Bearl Sprott Co., 9 Cir., 175 F.2d 432; Van Buskirk v. Wilkinson, 9 Cir., 216 F.2d 735; Longview Tugboat Co. v. Jameson, 9 Cir., 218 F.2d 547; Canadian Indemnity Co. v. Republic Indemnity Co., 9 Cir., 222 F.2d 601.
. Section 1332 provides:
“(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $3,000 exclusive of interest and costs, and is between:
“(1) Citizens of different States:
“(2) Citizens of a State, and foreign states or citizens or subjects thereof;
“(3) Citizens of different States and in which foreign states or citizens or subjects thereof are additional parties.
“(b) The word ‘States’, as used in this section, includes the Territories and the District of Columbia.”
. Including the 6 which moved to dismiss the complaint.
. See footnote 7.
. Jeffcott v. Donovan, 9 Cir., 135 F.2d 213.
. Section 1653 provides: “Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
McLEOD, Sheriff, et al. v. COOPER.
No. 8114.
Circuit Court of Appeals, Fifth Circuit.
Feb. 19, 1937.
Rehearing Denied March 22, 1937.
Wm. C. Pierce, W. K. Zewadski, Jr., and John B. Sutton, all of Tampa, Fla., for appellants.
Fred S. Abraham, of Tampa, Fla., for appellee.
Before STBLEY, HUTCHESON, and HOLMES, Circuit Judges.
Writ of certiorari denied 57 S.Ct. 938, 81 L.Ed. —.
HOLMES, Circuit Judge.
This is an appeal from an order of the bankruptcy court enjoining an execution sale of the bankrupt’s equitable interest in 18,480 shares of the capital stock of Celo Company of America. The execution was issued upon a judgment in personam against the bankrupt rendered March 24, 1935. The involuntary petition against the judgment debtor was filed July 16, 1934, and his adjudication followed on July 23, 1934.
The lien upon the property seized under execution, having been obtained through legal proceedings against an insolvent person within four months prior to the filing of the petition in bankruptcy, was invalidated by the adjudication under section 67f of the Bankruptcy Act, as amended (11 U.S.C.A. 107(f), unless a lien was obtained by virtue of a writ of garnishment issued by the state court, February 3, 1933, when the suit was filed and writ of garnishment served, which was done more than four months prior to the adjudication in bankruptcy. We think an answer to the single question, whether the equitable interest of the bankrupt in said corporate stock was the subject of garnishment, will be determinative of the case.
The trust agreement, made November 18, 1932, embraced an aggregate of 272,498 shares, and was entered into by the corporation and a number of its shareholders, including the bankrupt. It was to continue for twenty years, but might be dissolved by 65 per cent, of the trustors after two dividends had been paid on the capital stock of the corporation not included in the trust, the right to such priority in payment of dividends being provided for in the agreement. The trustee was given full power for ten years to vote the stock in his own discretion, unless instructed in writing by the owners of 65 per cent, of the stock so held in trust. Certain restrictions were also imposed by the parties upon their respective rights to sell their interests in the corpus of the trust. The trustee issued to the bankrupt, on November 18, 1932, a certificate of ownership of said 18,480 shares.
The action of the state court, based upon certain past-due notes, was commenced on February 3, 1933, and on the same day a writ of garnishment was issued against said corporation and the trustee in said agreement. The former filed no answer, but the latter answered, denying that he was indebted to the plaintiff and stating the facts as they existed with reference to his possession of the stock. This is what a garnishee should do under the Florida practice. Jax Ice & Cold Storage Co. v. South Florida Farms Co., 91 Fla. 593, 109 So. 212, 48 A.L.R. 957.
No judgment of any kind was taken against either garnishee, and the trustee in bankruptcy claims that the judgment creditor thereby waived any lien or priority obtained by means of the writ of garnishment; but we do not find it necessary to discuss this point, because we are satisfied that the bankrupt’s equitable interest in the stock in question was not subjected to any prior claim of the plaintiff by what was done in this instance.
The general rule is that equitable interests of this nature are not subject to garnishment, unless expressly authorized by statute. 28 C.J. 102. This rule is an incident of the very nature of garnishment as being a legal as distinguished from an equitable remedy. 28 C.J. 132. In Williams v. T. R. Sweat & Co., 103 Fla. 461, 137 So. 698, 699, the court held: “Garnishment is legal proceeding, purely statutory, and operation thereof, should not be extended beyond statutory authority.”
The only right given creditors under the Florida statutes to reach stock in a corporation is by attachment or execution. Sections 4533-4539, Compiled General Statutes. The garnishment statute does not specifically cover shares of, or interest in, corporate stock, being limited to “any indebtedness due to the defendant by a third person, and any goods, money, chattels or effects of the defendants in the hands, possession or control of a third person.” Section 5284, Compiled General Laws.
As this stock was not subject to a writ of garnishment against the corporation, a fortiori, the equitable interest of the bankrupt was not subject to such a writ against the trustee in the trust agreement. The latter had no property in his hands which he was required to turn over to the bankrupt. The possibility of future dividends being collected by him was a contingent liability not subject to garnishment. Savings Bank v. Loewe, 242 U.S. 357, 37 S.Ct. 172, 61 L.Ed. 360-362. See, also, Huot, Kelly & Co. v. Ely Candee & Wilder, 17 Fla. 775.
The order of the bankruptcy court is affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_issuearea
|
D
|
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.
FEDERAL COMMUNICATIONS COMMISSION et al. v. FLORIDA POWER CORP. et al.
No. 85-1658.
Argued December 3, 1986
Decided February 25, 1987
Marshall, J., delivered the opinion for a unanimous Court. Powell, J., filed a concurring opinion, in which O’Connor, J., joined, post, p. 254.
Deputy Solicitor General Wallace argued the cause for appellants in No. 85-1658. With him on the brief were Solicitor General Fried, Harriet S. Shapiro, and Jack D. Smith. Jay E. Ricks argued the cause for appellants in No. 85-1660. With him on the briefs were Brenda L. Fox, E. Barrett Prettyman, Jr., and J. Christopher Redding.
Allan J. Topols argued the cause for appellees in both cases and filed a brief for appellee Florida Power Corp. With him on the brief was Harry A. Evertz III. Peyton G. Bowman III and Daniel J. Wright filed a brief for appellees Alabama Power Co. et al. Shirley S. Fujimoto and Ralph A. Simmons filed a brief for appellee Tampa Electric Co.
Together with No. 85-1660, Group W Cable, Inc., et al. v. Florida Power Corp. et al., also on appeal from the same court.
Paul Glist filed a brief for the Texas Cable TV Association, Inc., et al. as amici curiae urging reversal in No. 85-1658.
Briefs of amici curiae urging affirmance were filed for the Edison Electric Institute by Robert L. Baum and Jan J. Sagett; for the Mountain States Telephone and Telegraph Co. et al. by L. Andrew Tollin; and for the Pacific Legal Foundation by Ronald A. Zumbrun and John H. Findley.
Briefs of amici curiae were filed for the Association of American Railroads by Paul A. Cunningham and Kenneth P. Kolson; and for Nor-West Cable Communications et al. by Harold R. Farrow, Sol Schildhause, and Siegfried Hesse.
Justice Marshall
delivered the opinion of the Court.
These cases present consolidated appeals from a single decision of the United States Court of Appeals for the Eleventh Circuit holding that 47 U. S. C. § 224 (the Pole Attachments Act) effects an unconstitutional taking of property without just compensation.
I
The Pole Attachments Act, 92 Stat. 35, as amended, 47 U. S. C. §224, was enacted by Congress as a solution to a perceived danger of anticompetitive practices by utilities in connection with cable television service. Cable television operators, in order to deliver television signals to their subscribers, must have a physical carrier for the cable; in most instances underground installation of the necessary cables is impossible or impracticable. Utility company poles provide, under such circumstances, virtually the only practical physical medium for the installation of television cables. Over the past 30 years, utility companies throughout the country have entered into arrangements for the leasing of space on poles to operators of cable television systems. These contracts have generally provided for the payment by the cable companies of a yearly rent for space on each pole to which cables were attached, the fixed costs of making modifications to the poles and of physical installation of cables being borne by the cable operators. In many States the rates charged by the utility companies for these attachments have not been subject to regulation.
In response to arguments by cable operators that utility companies were exploiting their monopoly position by engaging in widespread overcharging, Congress in the Pole Attachments Act authorized the Federal Communications Commission to fill the gap left by state systems of public utilities regulation. See S. Rep. No. 95-580, pp. 12-14 (1977). The Act provides that any cable company operating in a State which does not regulate the rates, terms, and conditions of pole attachments may seek relief from alleged overcharging before the Commission, which is empowered to “regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable . . . .” 47 U. S. C. § 224(b)(1). The Act establishes a standard for the Commission’s determination of rates, providing that “a rate is just and reasonable if it assures a utility the recovery of not less than the additional costs of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole, duct, conduit, or right-of-way.” § 224(d)(1).
In 1963, appellee Florida Power Corporation (Florida Power) entered into a pole attachment agreement with appellant Cox Cablevision Corporation (Cox). Florida Power subsequently, in 1977 and 1980, contracted for similar purposes with Teleprompter Corporation and Teleprompter Southeast, Inc. (Teleprompter), and Acton CATV, Inc. (Acton), respectively. In November 1980, Teleprompter filed a complaint with the FCC, alleging that its 1980 per pole rent of $6.24 was unreasonable under the Act. In February 1981, Acton filed a complaint concerning the rate under its agreement, which was $7.15 per pole. In July 1981, the Commission’s Common Carrier Bureau issued a memorandum opinion and order finding in favor of Teleprompter and Acton, reforming the agreements to provide in both cases for yearly rents of $1.79 per pole, and ordering refunds of excess rents paid after the filing of the complaints. Florida Power filed an application for review by the FCC; during the pendency of this application Cox filed a complaint seeking revision of the rent charge under its 1963 agreement, which was at that time set at $5.50 per pole. The Common Carrier Bureau ordered reformation of Cox’s agreement to provide for rent of $1.79 per pole. In September 1984 the FCC, in a single order, approved the orders of the Common Carrier Bureau in all three cases. The Commission rejected constitutional arguments raised by Florida Power under the Takings and Due Process Clauses, and upheld the rate calculations made by the Bureau.
Florida Power then sought review of the FCC’s decision in the United States Court of Appeals for the Eleventh Circuit. Neither Florida Power nor any of the intervenors argued before the Eleventh Circuit that the Pole Attachments Act was unconstitutional. The Court of Appeals nonetheless held in a per curiam opinion that the Pole Attachments Act violated the Fifth Amendment. 772 F. 2d 1537 (1985). The court first concluded that the Act effected a taking of property because it authorized a permanent physical occupation of property under our decision in Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982). 772 F. 2d, at 1544. The court then struck down the Act under the Fifth Amendment because it authorizes the FCC to make the initial determination of the amount of compensation to be paid under legislatively prescribed standards. “By prescribing a ‘binding rule’ in regard to the ascertainment of just compensation,” the court stated, “Congress has usurped what has long been held an exclusive judicial function.” Id., at 1546.
The FCC and intervenor cable operators noticed separate appeals from this decision. We noted probable jurisdiction and consolidated the cases for argument and decision, 476 U. S. 1156 (1986). We now reverse.
I — I HH
The Court of Appeals found at the outset that the Pole Attachments Act authorizes a permanent physical occupation of property, which, under the rule we adopted in Loretto, is per se a taking for which compensation must be paid. 772 F. 2d, at 1543-1544. We disagree with this premise, for we find that Loretto has no application to the facts of this litigation.
In Loretto we reviewed a New York statute which prohibited any owner of rental property from “interfer[ing] with the installation of cable television facilities upon his property or premises,” and provided that the landlord could charge cable operators for access to his property only the amount “which the [State Commission on Cable Television] shall, by regulation, determine to be reasonable.” 458 U. S., at 423, and n. 3. The appellant in Loretto had purchased an apartment building upon the roof of which appellee had mounted cables and switching boxes for the provision of cable television service to tenants. The State Commission on Cable Television had declared that a one-time charge of $1 might be levied by landlords in return for the statutory compulsory access to property. Id., at 424-425. We found that our prior decisions interpreting the Takings Clause, along with the purposes of the Clause itself, compelled the conclusion that “a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve.” Id., at 426. We reversed the holding of the New York Court of Appeals that the challenged statute did not take property within the meaning of the Fifth Amendment, and remanded for consideration of the issue whether just compensation had been paid.
We characterized our holding in Loretto as “very narrow.” Id., at 441. The Court of Appeals in its decision in these cases broadened that narrow holding beyond the scope to which it legitimately applies. For, while the statute we considered in Loretto specifically required landlords to permit permanent occupation of their property by cable companies, nothing in the Pole Attachments Act as interpreted by the FCC in these cases gives cable companies any right to occupy space on utility poles, or prohibits utility companies from refusing to enter into attachment agreements with cable operators. The Act authorizes the FCC, in the absence of parallel state regulation, to review the rents charged by public utility landlords who have voluntarily entered into leases with cable company tenants renting space on utility poles. As we observed in Loretto, statutes regulating the economic relations of landlords and tenants are not per se takings. Id., at 440; see Bowles v. Willingham, 321 U. S. 503, 517-518 (1944); Block v. Hirsh, 256 U. S. 135, 157 (1921); see also Fresh Pond Shopping Center, Inc. v. Callahan, 464 U. S. 875 (1983) (dismissing challenge to rent control ordinance under Loretto for want of substantial federal question). “So long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity.” Loretto, supra, at 440 (emphasis added).
This element of required acquiescence is at the heart of the concept of occupation. As we said in Loretto:
“[Property law has long protected an owner’s expectation that he will be relatively undisturbed at least in the possession of his property. To require, as well, that the owner permit another to exercise complete dominion literally adds insult to injury. Furthermore, such an occupation is qualitatively more severe than a regulation of the use of property, even a regulation that imposes affirmative duties on the owner, since the owner may have no control over the timing, extent, or nature of the invasion.” 458 U. S., at 436 (citation omitted).
Appellees contend, in essence, that it is a taking under Loretto for a tenant invited to lease at a rent of $7.15 to remain at the regulated rent of $1.79. But it is the invitation, not the rent, that makes the difference. The line which separates these cases from Loretto is the unambiguous distinction between a commercial lessee and an interloper with a government license. We conclude that the Court of Appeals erred in applying the per se rule of Loretto to the Pole Attachments Act.
I — i I — I HH
The remaining question, whether under traditional Fifth Amendment standards the challenged FCC order effected a taking of property, is readily answered. It is of course settled beyond dispute that regulation of rates chargeable from the employment of private property devoted to public uses is constitutionally permissible. See Munn v. Illinois, 94 U. S. 113, 133-134 (1877); Permian Basin Area Bate Cases, 390 U. S. 747, 768-769 (1968). Such regulation of maximum rates or prices “may, consistently with the Constitution, limit stringently the return recovered on investment, for investors’ interests provide only one of the variables in the constitutional calculus of reasonableness.” Id., at 769. So long as the rates set are not confiscatory, the Fifth Amendment does not bar their imposition. St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 53 (1936); see Permian Basin, supra, at 770.
The Pole Attachments Act, as previously noted, provides a range of reasonableness within which the FCC may undertake ratesetting. The Act provides that the minimum reasonable rate is equal to “the additional costs of providing pole attachments,” while the maximum reasonable rate is to be calculated “by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole, duct, conduit, or right-of-way.” 47 U. S. C. § 224(d)(1). The minimum measure is thus equivalent to the marginal cost of attachments, while the statutory maximum measure is determined by the fully allocated cost of the construction and operation of the pole to which cable is attached.
The FCC has evidently interpreted the statute to provide that when it reduces the contract rate for pole attachments, it may only reduce to the maximum rate allowed under the statute. Tr. of Oral Arg. 10. The rate imposed by the Commission in this case was calculated according to the statutory formula for the determination of fully allocated cost. App. to Juris. Statement of FCC 23a. Appellees have not contended, nor could it seriously be argued, that a rate providing for the recovery of fully allocated cost, including the actual cost of capital, is confiscatory. Accordingly, we hold that the the FCC regulatory order challenged below does not effect a taking of property under the Fifth Amendment.
IV
Because we hold that the Pole Attachments Act does not authorize a taking of property within the meaning of the Fifth Amendment, the holding of the Court of Appeals, that the Act is void because it unconstitutionally constrains the judicial determination of just compensation for takings, necessarily falls. The decision of the Court of Appeals is
Reversed.
The Commission had previously investigated allegations of overcharging by utilities, but had concluded that it had no jurisdiction because pole attachments were not “communications by wire or radio” under the Communications Act, 48 Stat. 1064, as amended, 47 U. S. C. § 151. See California Water & Telephone Co., 64 F. C. C. 2d 753, 758 (1977).
Florida Power’s agreements with Cox and Acton were for a minimum term of one year, thereafter terminable by either party on six months’ notice. The agreement with Teleprompter provided for a minimum term of 57s years, terminable thereafter on six months’ notice.
The rate ordered by the Commission was in both instances substantially lower than the rate which the cable operators had asked the Commission to adopt. The cable operators, after review of information provided by Florida Power, had requested the imposition of annual rents of approximately $2.20 per pole.
Appellants in No. 85-1660, Group W Cable, Inc., National Cable Television Association, Inc., and Cox Cablevision Corporation, intervened before the Court of Appeals supporting the FCC. Tampa Electric Company, Alabama Power Company, Arizona Public Service Company, and Mississippi Power and Light Company, appellees in both cases, intervened before the Court of Appeals in support of Florida Power.
Florida Power’s opening brief in the Court of Appeals stated that its petition for review of the Commission’s order did not “involve a facial attack on the constitutionality of a legislative act.” See Brief for Petitioner in No. 84-3683 (CA11), p. 35.
The Court of Appeals found, and appellees contend here, that “[t]he hard reality of the matter is that if Florida Power desires to exclude the cable companies, for whatever reason, they are powerless to do so . . . because in previous cases where utilities have ordered cable companies to disconnect, the FCC has routinely intervened by issuing temporary stays which prevent the exclusion of the cable companies.” 772 F. 2d 1537,1543 (1985). According to the Solicitor General, the FCC “has not yet taken a position” on whether utilities may terminate attachment contracts for non-retaliatory reasons. Tr. of Oral Arg. 7. The language of the Act provides no explicit authority to the FCC to require pole access for cable operators, and the legislative history strongly suggests that Congress intended no such authorization. See, e. g., S. Rep. No. 95-580, p. 16 (1977) (The Act “does not vest within a CATV system operator a right to access to a utility pole, nor does the bill, as reported, require a power company to dedicate a portion of its pole plant to communications use”). We do not decide today what the application of Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982), would be if the FCC in a future case required utilities, over objection, to enter into, renew, or refrain from terminating pole attachment agreements.
In view of the Commission’s interpretation of the statute, and use of the fully allocated cost measure in this case, we have no occasion to consider the constitutionality of the minimum rate allowable under the statute.
Our disposition of the takings question makes it unnecessary to review on the merits the Court of Appeals’ holding that Congress may not establish standards under which the initial determination of compensation will be made by an administrative authority subject to final judicial review.
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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