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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Geilher MOLINA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Nos. 89-1684, 90-1167.
United States Court of Appeals, First Circuit.
Submitted Oct. 6, 1992.
Decided Dec. 4, 1992.
John H. Ruginski, Jr., Providence, R.I., for appellant.
Harvey Kaplan, Maureen O’Sullivan, Jeremiah Friedman, Kaplan, O’Sullivan & Friedman, Boston, Mass., Lory D. Rosenberg, American Immigration Lawyers Ass’n, Washington, D.C., Kenneth H. Stern and Stern & Elkind, Denver, Colo., on briefs for American Immigration Lawyer’s Ass’n and Nat. Immigration Project of the Nat. Lawyers Guild, amici curiae.
Norah Ascoli Schwarz with whom Stuart M. Gerson, Asst. Atty. Gen., Robert Kendall, Jr., Asst. Director, Office of Immigration Litigation, and Jill E. Zengler, Attorney, Office of Immigration Litigation, Washington, D.C., were on brief for appel-lee.
Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.
BREYER, Chief Judge.
Geilher Molina asks us to review two decisions regarding his immigration status. See 8 U.S.C. § 1105a(a). First, the Board of Immigration Appeals (affirming an immigration judge) held that Molina had entered the United States unlawfully, and it ordered him deported. See 8 U.S.C. § 1251(a)(2). Second, the INS Legalization Appeals Unit denied Molina’s “amnesty” request (to become a temporary resident despite his unlawful entry) because of his two drug-crime convictions. See 8 U.S.C. §§ 1255a(a), 1255a(a)(4)(B). We find both of these decisions lawful, and we dismiss Molina’s review petitions.
I
The Deportation Decision
Molina argues that the decision ordering him deported contains three legal flaws. First, he says the decision is procedurally flawed because he was not present at his immigration hearing, on March 30, 1987. He argues that the immigration judge should have granted a continuance instead of then ordering him deported. Molina must concede, however:
1) that, at a first scheduled immigration hearing a month earlier, he personally had asked for an initial continuance until March 30 (because his counsel could not be present in February);
2) that the immigration judge then told him he should return with counsel on March 30 and gave him a written notice of the new March 30 hearing date;
3) that his counsel, present on March 30, could offer no reason for Molina’s absence, stating simply that Molina “probably got lost or he couldn’t get up here today;” and,
4) that his counsel conceded that he had entered the United States unlawfully— a fact that he does not now deny.
Immigration judges have broad legal power to decide whether or not to grant continuances. See Castaneda-Delgado v. INS, 525 F.2d 1295, 1300 (7th Cir.1975); Patel v. INS, 803 F.2d 804, 806 (5th Cir.1986). Given the circumstances just described, the immigration judge, in denying a further continuance, acted well within the boundaries of that power. See, e.g., Reyes-Arias v. INS, 866 F.2d 500 (D.C.Cir.1989) (no abuse of discretion to deny continuance and proceed with hearing in alien’s absence where counsel is present). Thus, there is no procedural flaw.
Second, Molina argues that the immigration judge, instead of ordering him deported, should have permitted him to leave voluntarily. See 8 U.S.C. § 1254(e) (authorizing Attorney General to permit voluntary departure). This INS decision, too, however, is highly discretionary. Strantzalis v. INS, 465 F.2d 1016, 1017 (3d Cir.1972). To qualify for voluntary departure, a deportable alien must show that he has demonstrated “good moral character” over the preceding five years. See 8 U.S.C. § 1254(e); Trias-Hernandez v. INS, 528 F.2d 366, 370 (9th Cir.1975). Molina has made no such demonstration.
We add one point. The record shows that the immigration judge said he would deny Molina’s voluntary departure request “because Molina did not appear at the hearing.” However, read in context, that statement does not imply that the immigration judge was equating “bad character” with “failure to appear.” In making the statement, the judge simply was referring to Molina’s failure to demonstrate good character, at the hearing or elsewhere in the record.
Third, Molina says that he later told the BIA why he was late, and he argues that the BIA then should have reopened the matter. BIA regulations, however, say that a
motion to reopen shall state the new facts to be proved and shall be supported by affidavits or other evidentiary material.
8 C.F.R. § 3.8(a). The only evidence attached to Molina’s motion consisted of a traffic ticket issued on the date of the hearing and an auto repair shop receipt dated March 30 one year later. Moreover, the record is silent as to what, in a reopened proceeding, Molina could have shown that might have helped him. Thus, the INS’s decision not to reopen (like its decision to deport Molina and its decision not to permit him to depart voluntarily) was plainly lawful. See Fuentes v. INS, 746 F.2d 94 (1st Cir.1984) (alien must support motion to reopen with affidavits or other evidence).
II
The “Amnesty” Decision
The immigration laws grant a kind of “amnesty” to certain aliens who have lived unlawfully in the United States since 1982. They permit the Attorney General to “adjust the status of [such] an alien to that of an alien lawfully admitted for temporary residence.” 8 U.S.C. § 1255a(a)(4). The Attorney General may make this adjustment, however, only if the alien is “admissible as an immigrant.” Id. And, an alien is “admissible as an immigrant” only if (among other things) he “has not been convicted of any felony.” 8 U.S.C. § 1255a(a)(4)(B).
Molina asked for “temporary residence” under these provisions. The INS (through its Legalization Appeals Unit) denied his request because, in its view, Molina had “been convicted” of two drug felonies. Molina admitted that, on two occasions, he had pled nolo contendere to Rhode Island drug charges and that he had been sentenced to probation, but he denied that these dispositions of the charges against him amounted to “convictions.” And, he sought review of the INS decision in this court.
While Molina’s petition was pending before this court, the INS asked us to remand this aspect of Molina’s case. The Legalization Appeals Unit of the INS, and the Bureau of Immigration Appeals of the Department of Justice (“BIA”), from time to time, have changed the standards they use to determine what counts as a “conviction.” Compare Matter of M—, 19 I. & N. Dec. 861 (Op. Comm’r.1989) with Matter of Ozkok, Int.Dec. 3044,1988 BIA LEXIS 4 (January 26, 1988) and Matter of L— R—, 8 I. & N. Dec. 269 (BIA 1959). The Fifth Circuit had held that the INS’s most recent change in these standards was unlawful in that it was inconsistent with binding BIA precedent. See Martinez-Montoya v. INS, 904 F.2d 1018, 1022-24 (5th Cir.1990) (setting aside INS decision in Matter of M— as inconsistent with BIA precedent in Matter of Ozkok). And, the INS wished to reconsider Molina’s status adjustment request in light of the Fifth Circuit opinion. After reconsideration, the INS Legalization Appeals Unit, applying the standard set out in Matter of Ozkok (which preceded the Matter of M— standard invalidated by the Fifth Circuit), reaffirmed its original determination. See Matter of Ozkok, supra; cf. Matter of L— R—, supra. Molina now continues to press his original argument, namely that he is entitled to amnesty because a “nolo plea plus probation” under Rhode Island law does not amount to a “conviction.”
A
Defining the Word “Conviction:” The “Ozkok” Standard
Almost every state has some provision in its criminal law that permits a person, accused of a crime, to enter a plea that leads 1) to a kind of “provisional” conviction, 2) followed by probation, and 3) followed by some kind of “expunging” of the conviction upon successful completion of probation. See Dickerson v. New Banner Institute, 460 U.S. 103, 121-22, 103 S.Ct. 986, 996, 74 L.Ed.2d 845 (1983) (describing variations among state procedures). The INS has developed standards (which it has modified from time to time) designed to define just when such “pleas plus probation” amount (for federal immigration law purposes) to “convictions,” and when they do not.
In 1988, in Matter of Ozkok, the BIA set forth the standards that the INS now applies to Molina. In that case, the BIA said it would (for federal immigration law purposes) consider a “person” to have been “convicted,” if
1) “the court has adjudicated him guilty” or “has entered a formal judgment of guilt”
or
2) an “adjudication of guilt has been withheld” and
a)“a judge or jury has found” him “guilty” or “he has entered a plea of guilty or nolo contendere” or he “has admitted sufficient facts to warrant a finding of guilty;” and
b) the “judge has ordered some form of punishment, penalty, or restraint on the person’s liberty;” and
c) a “judgment or adjudication of guilt may be entered if the person violates the terms of his probation ... without availability of further proceedings” regarding his guilt or innocence of the crime originally charged.
Matter of Ozkok, 1988 BIA LEXIS at 12-13.
Molina’s case, as we have said, involves a “plea plus probation.” In fact, it involves two of them:
a) On February 19, 1987, Molina pled “nolo contendere” in a Rhode Island court to a charge of possession of cocaine. The court placed him on probation for 18 months.
b) On February 26, 1987, Molina pled “nolo contendere” in a Rhode Island court to a charge of possession of a controlled substance. The court placed him on probation for two years.
The INS held that these “pleas plus probation,” in the circumstances here present, met the Ozkok tests to qualify as convictions. Indeed, the “pleas plus probation” apparently met both Ozkok tests. They met the first test because the state documents entitled “Judgment and Disposition” in each case specifically say, “IT IS ADJUDGED that the defendant has been adjudged guilty” upon the “plea of (nolo contendere).” (See Appendix A). They met the second test because, in each instance, a) there was a plea of nolo contend-ere; b) the judge ordered probation, which, to a degree, restrained Molina’s liberty; and c) a probation violation would have led to further punishment without further litigation about the original crime. See R.I.Gen.L. § 12-19-19 (after plea of nolo contendere, court may impose sentence at any time or, if sentence is deferred pursuant to an agreement, within five years after the agreement); R.I.Gen.L. § 12-19-9 (upon probation violation, defendant shall appear before the court and, after statement of facts documenting probation violation is received by court, court may in its discretion order defendant committed on previously set or new sentence, or continue suspension of sentence).
As the INS noted, the relevant Rhode Island law also contains a kind of “ex-pungement” provision. That law provides that “upon the completion of the probationary period, and absent a violation of the terms of said probation[,] said plea [of nolo contendere] and probation shall not constitute a conviction for any purpose.” R.I.GemL. § 12-18-3 (emphasis added). Under the Ozkok rules, the existence of this “expungement” provision is beside the point, at least in a case like Molina’s. Accordingly, the INS held that the Rhode Island provision’s existence did not change the result.
B
Molina’s Argument: The Existence of Legal Power
Molina points out that Rhode Island law says that, after he successfully completes probation, his “plea plus probation” shall not “constitute a conviction for any purpose.” (emphasis added). The INS, however, counts his “plea plus probation” as a “conviction” for at least one purpose, namely to deny him amnesty under immigration law. The INS’s denying him amnesty, Molina says, runs contrary to Rhode Island law. And, in his view, the INS must follow Rhode Island’s law because of the statutory counterpart to the federal Constitution’s “full faith and credit” clause. See 28 U.S.C. § 1738 (federal courts must give full faith and credit to state acts, records, and judicial proceedings); cf. U.S. Const, art. IV, § 1 (states must give full faith and credit to the public acts, records, and judicial proceedings of other states).
The problem with this argument is that neither the constitutional clause nor its statutory analogue (binding federal courts) purports to prevent federal legislative authorities from writing federal statutes that differ from state statutes or from attaching, to words in a federal statute, a meaning that differs from the meaning attached to the same word when used in a statute enacted by a state. A federal Union in which this were not so — a Union in which states possessed the constitutional power to control federal courts’ interpretation of federal statutes — would not resemble our posi-Civil War United States. The federal Constitution permits Congress to condition its immigration law upon the absence of a “conviction” as federally defined.
There is no claim here that the federal definition exceeds the bounds that some other part of the Constitution (say, the “due process” clause) might set. After all, that federal definition (according to the INS) applies the word “conviction” where the state proves, or the defendant waives his right to deny that, the defendant has committed a crime with which the state has charged him. We see nothing “fundamentally unfair” about such a definition. Nor do we see how later state proceedings could create some “fundamental unfairness” where they do not revise the state’s determination of the defendant’s guilt. Cf. Thrall v. Wolfe, 503 F.2d 313, 316 (7th Cir.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975) (federal statutory disability may be based on state conviction despite existence of state pardon, where pardon is not expressly based on a determination of innocence). The Constitution does not require precise conformity between the word “conviction” in the federal immigration laws and the varying meanings of the word “conviction” in the laws of the fifty states.
Moreover, Molina does not (and could not successfully) argue that, in the immigration statutes, Congress intended to effect perfect conformity between varying state and federal laws. Rather, the need for national uniformity in the application of federal law and the history of that word as applied by the INS, see pp. 20-21, infra, and the courts, suggest that the federal word, while reflecting basic state usage, need not provide its precise mirror image. Cf. Dickerson v. New Banner Institute, 460 U.S. 103, 111-12, 103 S.Ct. 986, 991, 74 L.Ed.2d 845 (1983). This Circuit, forty years ago, held that the “meaning of the word ‘convicted’ ” in the federal immigration law “is a federal question.” Pino v. Nicolls, 215 F.2d 237, 243 (1st Cir.1954) (Magruder, J.). And, the Supreme Court, reviewing the same case, reversed the Circuit on other grounds but made clear that the word’s federal meaning did not precisely track the contours of the state’s equivalent phrase. See Pino v. London, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955) (holding that the federal immigration law word “conviction” requires “finality” despite state law precedent suggesting the contrary); see also Yazdchi v. INS, 878 F.2d 166, 167 (5th Cir.), cert. denied, 493 U.S. 978, 110 S.Ct. 505, 107 L.Ed.2d 507 (1989) (definition of the word “conviction” primarily a matter of federal law); Chong v. INS, 890 F.2d 284, 285 (11th Cir.1989) (same); Kolios v. INS, 532 F.2d 786, 789 (1st Cir.), cert. denied, 429 U.S. 884, 97 S.Ct. 234, 50 L.Ed.2d 165 (1976); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir.1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976); Will v. INS, 447 F.2d 529, 531 (7th Cir.1971); Gutierrez v. INS, 323 F.2d 593, 596 (9th Cir.1963), cert. denied 377 U.S. 910, 84 S.Ct. 1171, 12 L.Ed.2d 179 (1964).
Finally, Molina does not (and could not successfully) argue that the INS lacks the legal power to provide, within limits, an interpretation of “conviction” to which courts should pay particular attention (even if that interpretation changes somewhat over time). The application of the immigration term “conviction,” at least in the context of varying state “expungement” laws and practices, raises issues that involve administration of the statute, that demand administrative expertise, and that, in the context of the entire statute, are comparatively minor or “interstitial.” See Mayburg v. Secretary of HHS, 740 F.2d 100, 105-06 (1st Cir.1984). That being so, one would expect courts to hold that Congress has delegated a degree of legal power to the INS, the agency charged with enforcing the statutory scheme, to provide a reasonable interpretation of the word “conviction.” See generally Chevron v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Or, at the least, one would expect to find courts listening with care to the agency’s interpretation, insofar as it has the power to “persuade” if not to “control.” Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944).
In sum, we have no reason to doubt that the INS, at least in principle, has the legal power to which Molina objects, namely the legal power to apply the word “conviction” in the federal immigration statute in a manner that does not conform perfectly with the application of the same word in Rhode Island’s state law. This conclusion provides sufficient grounds for us to reject Molina’s claim to the contrary, namely, his claim that the federal government lacks the legal power to ignore Rhode Island’s “ex-pungement” provision.
C
Amici’s Arguments: The Exercise of That Power
Amici curiae have submitted briefs in which they argue, not that the INS lacked the power to vary from Rhode Island’s definition of “conviction,” but, rather, that the INS acted unlawfully in developing a new definition of “conviction” in the case of Ozkok, and then applying that new definition to Molina’s pr e-Ozkok “pleas plus probation.” Normally, we would not consider these separate issues, since they were not raised by the parties in the case. See, e.g., North and South Rivers Watershed Ass’n, Inc. v. Town of Scituate, 949 F.2d 552, 556 n. 8 (1st Cir.1991) (declining to consider argument raised by amicus which litigants have ignored); Baker v. City of Concord, 916 F.2d 744, 755 (1st Cir.1990); Lane v. First Nat’l Bank, 871 F.2d 166, 175 (1st Cir.1989). Nonetheless, we have examined amici’s arguments in order to satisfy ourselves that the INS acted lawfully in refusing amnesty to Molina. We conclude that it did.
Amici’s most important argument is that, when Molina entered his nolo pleas, he may have relied upon the INS’ preexisting, pr e-Ozkok interpretation of the word “conviction,” set forth in the 1959 INS case, Matter of L— R—, supra. In 1988, in the case of Matter of Ozkok, supra, the INS revised this interpretation, and it later applied the revised interpretation to Molina. Because Molina reasonably relied on pr e-Ozkok INS rules, amici argue, the INS should have promulgated its new Ozkok standard so that it did not apply to any pre-existing past convictions, but only to convictions that might take place in the future. They conclude that the INS’s failure to do so, say, by changing the pr e-Ozkok definition in a rulemaking proceeding, or by overruling its prior case with prospective effect only, was “arbitrary, capricious, [or] an abuse of discretion,” and therefore unlawful. See Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A); cf. NLRB v. Wyman Gordon, 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (finding an abuse of the agency’s power to choose between rulemaking and adjudicatory proceedings as a vehicle for promulgating new policies); NLRB v. Atkinson, 195 F.2d 141 (9th Cir.1952) (reliance interests make it unreasonable, hence unlawful, for an agency to make policy change retroactive); Ruangswang v. INS, 591 F.2d 39 (9th Cir.1978) (where good faith reliance on immigration investment standard shown, court will apply standard in effect at time of investment rather than current standard); Patel v. INS, 638 F.2d 1199 (9th Cir.1980) (same).
The flaw in this argument lies in its premise: that Molina reasonably relied upon the pre-existing standard. The record contains no evidence that Molina actually relied upon pre-existing caselaw. But, even were we to engage in a legal fiction, and assume that Molina was familiar with existing law and that this familiarity affected his decision to plead “nolo”, we cannot find significant, reasonable reliance. For one thing, pre-existing INS standards would not have told Molina that, despite his “plea plus probation,” he could reasonably have expected to remain eligible for amnesty. Those standards, set forth in the BIA case Matter of L— R—, were, at best, ambiguous with respect to a person in Molina’s situation. Under those standards, a conviction existed if:
1)there had been a judicial finding of guilt;
2) the court had removed the case from the category of “pending” cases;
3) the court had ordered the defendant fined, or incarcerated, or the court had suspended the sentence, or the court had suspended the imposition of sentence; and
4) the action of the court was considered a conviction by the state for at least some purpose.
Matter of L— R—, 8 I. & N. Dec. at 270. These standards clearly exempted “plea plus probation” procedures found in many states — procedures in which a court suspends entry of a judgment, never entering such a judgment if the defendant successfully completes probation. See, e.g., Matter of Garcia, 19 I. & N. Dec. 270 (BIA 1985) (no conviction since adjudication of guilt withheld); Matter of Seda, 17 I. & N. Dec. 550 (BIA 1980) (same). These standards, however, did not clearly exempt Rhode Island’s procedure — a procedure in which the defendant is “adjudged guilty” at the time he presents his plea. Under Rhode Island procedure, it could be found, at least arguably, that: (1) there had been a judicial finding of guilt; (2) the case was no longer pending; (3) the court had “suspended the sentence,” and (4) the court’s action was “considered a conviction by the state for at least some purpose,” namely the purpose of imposing probation. Rhode Island apparently permitted courts to consider “pleas plus probation” for purposes of enhancing sentences in any future criminal proceedings as well. See R.I.Gen.L. § 12-18-3 (evidence of nolo plea cannot be introduced in court proceeding except for sentencing purpose after conviction of a subsequent crime); see also R.I.Gen.L. § 12-1.3-4 (despite expungement, conviction record must be disclosed if defendant is applicant for admission to bar, court, or law enforcement agency).
Whether or not under Matter of L— R— standards Molina’s “pleas plus probation” would have amounted to “convictions” is not completely clear. On the one hand, Rhode Island, unlike many states with similar procedures, imposes comparatively few disabilities as a consequence of a nolo plea after the defendant has completed probation and the plea has been expunged. Cf. Garcia-Gonzalez v. INS, 344 F.2d 804, 807 & n. 3 (9th Cir.), cert. denied, 382 U.S. 840, 86 S.Ct. 88, 15 L.Ed.2d 81 (1965) (large number of disabilities imposed under California law despite expungement of conviction after plea and probation cited to support finding of immigration law conviction). On the other hand, Rhode Island’s own caselaw indicates that, in Rhode Island, a nolo plea constitutes an admission of guilt, and is “as much a conviction as a jury’s verdict of guilt would have been” for the purpose of that proceeding, State v. Degnan, 587 A.2d 71 (R.I.1991), and, therefore, one might claim, for the purpose of the imposition of probation which results. Moreover, a Rhode Island prosecutor apparently could introduce the “plea plus (even a successful) probation” into the record at sentencing should the defendant commit another, future crime. R.I.Gen.L. § 12-18-3.
We have used a computerized data base to search the BIA cases hoping to find an instance in which the INS applied Matter of L— R— to a Rhode Island-type statute. Some cases find “no conviction” in circumstances where there has been no adjudication of guilt. That does not seem to be the situation here. See Matter of Garcia, supra; Matter of Seda, supra. Other cases find that a conviction exists where the state considers the defendant to have been convicted for some purpose besides the imposition of probation. See Matter of Zangwill, 18 I. & N. Dec. 22 (1981); Matter of Westman, 17 I. & N. Dec. 50 (1979); Matter of Robinson, 16 I. & N. Dec. 762 (1979); Matter of Rehman, 15 I. & N. Dec. 505 (1975); Matter of Pikkarainen, 10 I. & N. Dec. 401 (1963); Matter of A— F—, 8 I. & N. Dec. 429 (1959). Indeed, one case finds a conviction where the state says successful probation “annuls” the conviction for every purpose except potential future sentence enhancement. And, this seems very much like the situation under Rhode Island law. See Matter of Varagianis, 16 I. & N. Dec. 48 (1976) (successful completion of probation “annuls” all consequences except consideration at a new sentencing proceeding if defendant commits a new crime). Given this background, we cannot say that pre-Ozkok BIA standards would have exempted the Rhode Island procedure. And, we do not see how Molina, at the time of his plea, reasonably could have made a firm and favorable prediction about the matter.
Second, and independently, before Molina entered his pleas, the Supreme Court had decided a case involving the applicability of the federal word “conviction,” in a federal gun control statute, to “plea plus probation” procedures. See Dickerson, supra. In Dickerson, the Court held that the definition of “conviction” within the terms of the federal gun control statute was a matter of “federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State.” Dickerson, 460 U.S. at 111-12, 103 S.Ct. at 991. This court then held that the specific Rhode Island “plea plus probation” procedure here at issue produced a “conviction” for federal gun control purposes. United States v. Bustamante, 706 F.2d 13 (1st Cir.), cert. denied, 464 U.S. 856, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983).
Of course, federal gun control law is not federal immigration law. And, in 1986, Congress, in a sense, overruled Dickerson by explicitly amending the definition of conviction in the federal gun control statute to specifically incorporate state law. See Firearm Owners’ Protection Act, Pub.L. 99-308, § 105, 100 Stat. 449, 459 (1986). Nonetheless, the opinions in Dickerson and Bustamante, interpreting the federal term “conviction” in a highly analogous set of circumstances, should have warned Molina (and others in his situation) not to rely on Rhode Island’s expungement provision as maintaining their eligibility for amnesty.
Given the lack of clear legal authority warranting the reliance that amici allege, the INS did not act arbitrarily in applying the new Ozkok standard to Molina’s “conviction,” even though that “conviction” occurred prior to the Ozkok decision. Retroactive application of agency interpretations developed through adjudication is not automatically unlawful. To the contrary, retroactive application of new principles in adjudicatory proceedings is the rule, not the exception. And, agencies have broad legal power to choose between adjudication and rulemaking proceedings as vehicles for policymaking. See SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947).- Under the circumstances just described, the INS, in applying Ozkok to Molina’s pr e-Ozkok “conviction,” acted within its legal authority. NLRB v. Bell Aerospace, 416 U.S. 267, 295, 94 S.Ct. 1757, 1772, 40 L.Ed.2d 134 (1974); Clark-Cowlitz Joint Operating Agcy. v. FERC, 826 F.2d 1074, 1081 (D.C.Cir.1987) (en banc), cert. denied, 485 U.S. 913, 108 S.Ct. 1088, 99 L.Ed.2d 247 (1988), citing Retail, Wholesale & Dept. Store Union v. NLRB, 466 F.2d 380 (D.C.Cir.1972).
Amici make two other arguments. First, they point out that the statute’s word “conviction” now appears in a version of the immigration statute that Congress reenacted in 1986. See Immigration Reform & Control Act (“IRCA”), Pub.L. No. 99-603, 100 Stat. 3359. They argue that we should read that word, as it appears in the reenacted statute, to adopt the INS’s then existing, pr e-Ozkok, definition of the word. But we do not see why this should be so. Congressional reenactment of statutory language does not normally or automatically indicate a legislative intent to freeze all pre-existing agency interpretations of language, forever after immunizing them from change. Cf. American Federation of Labor v. Brock, 835 F.2d 912, 915-16 (D.C.Cir.1987) (express congressional approval of administrative interpretation necessary for interpretation to be seen as mandated by statute). The case before us presents a particularly weak case for implying any such Congressional intent, for, as we have pointed out, the application of the pre-existing INS rule in Matter of L— R— to the Rhode Island statute was unclear. Congressional silence does not show a Congressional intent to prevent subsequent INS clarification of whether, or how, the word “conviction” applied to Rhode Island’s type of procedure. Yet, amici here point to nothing but such Congressional silence from which to imply any such intent.
Second, amici argue that the Ozkok definitional standards conflict with an INS rule — a rule in which the INS repeats the language from Matter of L— R— requiring that the state procedure must be “considered a conviction ... for at least some purpose.” 8 C.F.R. § 242.2(g) (1988). One fatal problem with this argument is that the rule in question was an interim rule. The INS promulgated a final rule, effective before Ozkok was decided, and that final rule did not contain the language that amici believe would have helped Molina. See 53 Fed.Reg. 9283 (Mar. 22,1988), codified at 8 C.F.R. § 242.2(b) (1989).
For these reasons, the INS did not act unlawfully in considering Molina to have been convicted of drug crimes and therefore ineligible for amnesty.
The petitions for review are
Dismissed.
APPENDIX A
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_certreason
|
L
|
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.
Giridhar C. SEKHAR, Petitioner
v.
UNITED STATES.
No. 12-357.
Supreme Court of the United States
Argued April 23, 2013.
Decided June 26, 2013.
Paul D. Clement, for Petitioner.
Sarah E. Harrington, for Respondent.
Paul D. Clement, Counsel of Record, George W. Hicks, Jr., Bancroft PLLC, Washington, DC, for Petitioner.
Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Mythili Raman, Acting Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Sarah E. Harrington, Assistant to the Solicitor General, Joel M. Gershowitz, Washington, D.C., for United States.
Justice SCALIA delivered the opinion of the Court.
We consider whether attempting to compel a person to recommend that his employer approve an investment constitutes "the obtaining of property from another" under 18 U.S.C. § 1951(b)(2).
I
New York's Common Retirement Fund is an employee pension fund for the State of New York and its local governments.
As sole trustee of the Fund, the State Comptroller chooses Fund investments. When the Comptroller decides to approve an investment he issues a "Commitment." A Commitment, however, does not actually bind the Fund. For that to happen, the Fund and the recipient of the investment must enter into a limited partnership agreement. 683 F.3d 436, 438 (C.A.2 2012).
Petitioner Giridhar Sekhar was a managing partner of FA Technology Ventures. In October 2009, the Comptroller's office was considering whether to invest in a fund managed by that firm. The office's general counsel made a written recommendation to the Comptroller not to invest in the fund, after learning that the Office of the New York Attorney General was investigating another fund managed by the firm. The Comptroller decided not to issue a Commitment and notified a partner of FA Technology Ventures. That partner had previously heard rumors that the general counsel was having an extramarital affair.
The general counsel then received a series of anonymous e-mails demanding that he recommend moving forward with the investment and threatening, if he did not, to disclose information about his alleged affair to his wife, government officials, and the media. App. 59-61. The general counsel contacted law enforcement, which traced some of the e-mails to petitioner's home computer and other e-mails to offices of FA Technology Ventures.
Petitioner was indicted for, and a jury convicted him of, attempted extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951(a). That Act subjects a person to criminal liability if he "in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do." § 1951(a). The Act defines "extortion" to mean "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."
§ 1951(b)(2). On the verdict form, the jury was asked to specify the property that petitioner attempted to extort: (1) "the Commitment"; (2) "the Comptroller's approval of the Commitment"; or (3) "the General Counsel's recommendation to approve the Commitment." App. 141-142. The jury chose only the third option.
The Court of Appeals for the Second Circuit affirmed the conviction. The court held that the general counsel "had a property right in rendering sound legal advice to the Comptroller and, specifically, to recommend-free from threats-whether the Comptroller should issue a Commitment for [the funds]." 683 F.3d, at 441. The court concluded that petitioner not only attempted to deprive the general counsel of his "property right," but that petitioner also "attempted to exercise that right by forcing the General Counsel to make a recommendation determined by [petitioner]." Id., at 442.
We granted certiorari. 568 U.S. ----, 133 S.Ct. 928, 184 L.Ed.2d 719 (2013).
II
A
Whether viewed from the standpoint of the common law, the text and genesis of the statute at issue here, or the jurisprudence of this Court's prior cases, what was charged in this case was not extortion.
It is a settled principle of interpretation that, absent other indication, "Congress intends to incorporate the well-settled meaning of the common-law terms it uses." Neder v. United States, 527 U.S. 1, 23, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).
"[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed." Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952).
Or as Justice Frankfurter colorfully put it, "if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it." Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 537 (1947).
The Hobbs Act punishes "extortion," one of the oldest crimes in our legal tradition, see E. Coke, The Third Part of the Institutes of the Laws of England 148-150 (1648) (reprint 2008). The crime originally applied only to extortionate action by public officials, but was later extended by statute to private extortion. See 4 C. Torcia, Wharton's Criminal Law §§ 695, 699 (14th ed. 1981). As far as is known, no case predating the Hobbs Act-English, federal, or state-ever identified conduct such as that charged here as extortionate. Extortion required the obtaining of items of value, typically cash, from the victim. See, e.g., People v. Whaley, 6 Cow. 661 (N.Y.Sup.Ct.1827) (justice of the peace properly indicted for extorting money); Commonwealth v. Bagley, 24 Mass. 279 (1828) (officer properly convicted for demanding a fee for letting a man out of prison); Commonwealth v. Mitchell, 66 Ky. 25 (1867) (jailer properly indicted for extorting money from prisoner); Queen v. Woodward, 11 Mod. 137, 88 Eng. Rep. 949 (K.B. 1707) (upholding indictment for extorting "money and a note"). It did not cover mere coercion to act, or to refrain from acting. See, e.g., King v. Burdett, 1 Ld. Raym. 149, 91 Eng. Rep. 996 (K.B. 1696) (dictum) (extortion consisted of the "taking of money for the use of the stalls," not the deprivation of "free liberty to sell [one's] wares in the market according to law"). The text of the statute at issue confirms that the alleged property here cannot be extorted. Enacted in 1946, the Hobbs Act defines its crime of "extortion" as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951(b) (2) (emphasis added). Obtaining property requires "not only the deprivation but also the acquisition of property." Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 404, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003) (citing United States v. Enmons, 410 U.S. 396, 400, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973) ). That is, it requires that the victim "part with" his property, R. Perkins & R. Boyce, Criminal Law 451 (3d ed. 1982), and that the extortionist "gain possession" of it, Scheidler, supra, at 403, n. 8, 123 S.Ct. 1057; see also Webster's New International Dictionary 1682 (2d ed. 1949) (defining "obtain"); Murray, Note, Protesters, Extortion, and Coercion: Preventing RICO from Chilling First Amendment Freedoms, 75 Notre Dame L.Rev. 691, 706 (1999) (Murray). The property extorted must therefore be transferable -that is, capable of passing from one person to another. The alleged property here lacks that defining feature.
The genesis of the Hobbs Act reinforces that conclusion. The Act was modeled after § 850 of the New York Penal Law (1909), which was derived from the famous Field Code, a 19th-century model penal code, see 4 Commissioners of the Code, Penal Code of the State of New York § 613, p. 220 (1865) (reprint 1998). Congress borrowed, nearly verbatim, the New York statute's definition of extortion. See Scheidler, 537 U.S., at 403, 123 S.Ct. 1057. The New York statute contained, in addition to the felony crime of extortion, a new (that is to say, nonexistent at common law) misdemeanor crime of coercion. Whereas the former required, as we have said, " 'the criminal acquisition of ... property,' " ibid., the latter required merely the use of threats "to compel another person to do or to abstain from doing an act which such other such person has a legal right to do or to abstain from doing." N.Y. Penal Law § 530 (1909), earlier codified in N.Y. Penal Code § 653 (1881). Congress did not copy the coercion provision. The omission must have been deliberate, since it was perfectly clear that extortion did not include coercion. At the time of the borrowing (1946), New York courts had consistently held that the sort of interference with rights that occurred here was coercion. See, e.g., People v. Ginsberg, 262 N.Y. 556, 188 N.E. 62 (1933) (per curiam ) (compelling store owner to become a member of a trade association and to remove advertisements); People v. Scotti, 266 N.Y. 480, 195 N.E. 162 (1934) (compelling victim to enter into agreement with union); People v. Kaplan, 240 App.Div. 72, 74-75, 269 N.Y.S. 161, 163-164, aff'd, 264 N.Y. 675, 191 N.E. 621 (1934) (compelling union members to drop lawsuits against union leadership). And finally, this Court's own precedent similarly demands reversal of petitioner's convictions. In Scheidler, we held that protesters did not commit extortion under the Hobbs Act, even though they "interfered with, disrupted, and in some instances completely deprived" abortion clinics of their ability to run their business. 537 U.S., at 404-405, 123 S.Ct. 1057. We reasoned that the protesters may have deprived the clinics of an "alleged property right," but they did not pursue or receive " 'something of value from' " the clinics that they could then "exercise, transfer, or sell" themselves. Id., at 405, 123 S.Ct. 1057. The opinion supported its holding by citing the three New York coercion cases discussed above. See id., at 405-406, 123 S.Ct. 1057.
This case is easier than Scheidler, where one might at least have said that physical occupation of property amounted to obtaining that property. The deprivation alleged here is far more abstract. Scheidler rested its decision, as we do, on the term "obtaining." Id., at 402, n. 6, 123 S.Ct. 1057. The principle announced there-that a defendant must pursue something of value from the victim that can be exercised, transferred, or sold-applies with equal force here.
Whether one considers the personal right at issue to be "property" in a broad sense or not, it certainly was not obtainable property under the Hobbs Act.
B
The Government's shifting and imprecise characterization of the alleged property at issue betrays the weakness of its case. According to the jury's verdict form, the "property" that petitioner attempted to extort was "the General Counsel's recommendation to approve the Commitment." App. 142. But the Government expends minuscule effort in defending that theory of conviction. And for good reason-to wit, our decision in Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000), which reversed a business owner's mail-fraud conviction for "obtaining money or property" through misrepresentations made in an application for a video-poker license issued by the State. We held that a "license" is not "property" while in the State's hands and so cannot be "obtained" from the State. Id., at 20-22, 121 S.Ct. 365. Even less so can an employee's yet-to-be-issued recommendation be called obtainable property, and less so still a yet-to-be-issued recommendation that would merely approve (but not effect) a particular investment.
Hence the Government's reliance on an alternative, more sophisticated (and sophistic) description of the property. Instead of defending the jury's description, the Government hinges its case on the general counsel's "intangible property right to give his disinterested legal opinion to his client free of improper outside interference." Brief for United States 39. But what, exactly, would the petitioner have obtained for himself? A right to give his own disinterested legal opinion to his own client free of improper interference? Or perhaps, a right to give the general counsel's disinterested legal opinion to the general counsel's client?
Either formulation sounds absurd, because it is. Clearly, petitioner's goal was not to acquire the general counsel's "intangible property right to give disinterested legal advice." It was to force the general counsel to offer advice that accorded with petitioner's wishes. But again, that is coercion, not extortion. See Murray 721-722. No fluent speaker of English would say that "petitioner obtained and exercised the general counsel's right to make a recommendation," any more than he would say that a person "obtained and exercised another's right to free speech." He would say that "petitioner forced the general counsel to make a particular recommendation," just as he would say that a person "forced another to make a statement." Adopting the Government's theory here would not only make nonsense of words; it would collapse the longstanding distinction between extortion and coercion and ignore Congress's choice to penalize one but not the other. See Scheidler, supra, at 409, 123 S.Ct. 1057. That we cannot do.
The judgment of the Court of Appeals for the Second Circuit is reversed.
It is so ordered.
Justice ALITO, with whom Justice KENNEDY and Justice SOTOMAYOR join, concurring in the judgment.
The question that we must decide in this case is whether "the General Counsel's recommendation to approve the Commitment," App. 142-or his right to make that recommendation-is property that is capable of being extorted under the Hobbs Act, 18 U.S.C. § 1951. In my view, they are not. I
The jury in this case returned a special verdict form and stated that the property that petitioner attempted to extort was "the General Counsel's recommendation to approve the Commitment." What the jury obviously meant by this was the general counsel's internal suggestion to his superior that the state government issue a nonbinding commitment to invest in a fund managed by FA Technology Ventures. We must therefore decide whether this nonbinding internal recommendation by a salaried state employee constitutes "property" within the meaning of the Hobbs Act, which defines "extortion" as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." § 1951(b)(2).
The Hobbs Act does not define the term "property," but even at common law the offense of extortion was understood to include the obtaining of any thing of value. 2 E. Coke, The First Part of the Institutes of the Laws of England 368b (18th English ed. 1823) ("Extortion ... is a great misprison, by wresting or unlawfully taking by any officer, by colour of his office, any money or valuable thing of or from any man"); 4 W. Blackstone, Commentaries *141 (extortion is "an abuse of public, justice which consists in any officer's unlawfully taking, by colour of his office, from any man, any money or thing of value"). See also 2 J. Bishop, Criminal Law § 401, pp. 331-332 (9th ed. 1923) ("In most cases, the thing obtained is money.... But probably anything of value will suffice"); 3 F. Wharton, A Treatise on Criminal Law § 1898, p. 2095 (11th ed. 1912) ("[I]t is enough if any valuable thing is received").
At the time Congress enacted the Hobbs Act, the contemporary edition of Black's Law Dictionary included an expansive definition of the term. See Black's Law Dictionary 1446 (3d ed. 1933). It stated that "[t]he term is said to extend to every species of valuable right and interest.... The word is also commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate."Id., at 1446-1447. And the lower courts have long given the term a similarly expansive construction. See, e.g., United States v. Tropiano, 418 F.2d 1069, 1075 (C.A.2 1969) ("The concept of property under the Hobbs Act ... includes, in a broad sense, any valuable right considered as a source or element of wealth").
Despite the breadth of some of these formulations, however, the term "property" plainly does not reach everything that a person may hold dear; nor does it extend to everything that might in some indirect way portend the possibility of future economic gain. I do not suggest that the current lower court case law is necessarily correct, but it seems clear that the case now before us is an outlier and that the jury's verdict stretches the concept of property beyond the breaking point.
It is not customary to refer to an internal recommendation to make a government decision as a form of property. It would seem strange to say that the government or its employees have a property interest in their internal recommendations regarding such things as the issuance of a building permit, the content of an environmental impact statement, the approval of a new drug, or the indictment of an individual or a corporation. And it would be even stranger to say that a private party who might be affected by the government's decision can obtain a property interest in a recommendation to make the decision. See, e.g., Doyle v. University of Alabama, 680 F.2d 1323, 1326 (C.A.11 1982) ("Doyle had no protected property interest in the mere recommendation for a raise; thus she was not entitled to due process safeguards when the recommended raise was disapproved by the University").
Our decision in Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000), supports the conclusion that internal recommendations regarding government decisions are not property. In Cleveland, we vacated a business owner's conviction under the federal mail fraud statute, 18 U.S.C. § 1341, for "obtaining money or property" through misrepresentations made in an application for a video poker license issued by the State. We held that a video poker license is not property in the hands of the State. Cleveland, supra, at 15, 121 S.Ct. 365. I do not suggest that the concepts of property under the mail fraud statute and the Hobbs Act are necessarily the same. But surely a video poker license has a stronger claim to be classified as property than a mere internal recommendation that a state government take an initial step that might lead eventually to an investment that would be beneficial to private parties.
The Government has not cited any Hobbs Act case holding that an internal recommendation regarding a government decision constitutes property. Nor has the Government cited any other example of the use of the term "property" in this sense.
The Second Circuit recharacterized the property that petitioner attempted to obtain as the general counsel's "right to make a recommendation consistent with his legal judgment." 683 F.3d 436, 442 (2012). And the Government also presses that theory in this Court. Brief for United States 15, 34-45. According to the Government, the general counsel's property interest in his recommendation encompasses the right to make the recommendation. Id., at 35-36. But this argument assumes that the recommendation itself is property. See id., at 35 (the general counsel's " 'recommendation ' and his 'right to make the recommendation' are merely different expressions of the same property"). If an internal recommendation regarding a government decision does not constitute property, then surely a government employee's right to make such a recommendation is not property either (nor could it be deemed a property right).
II
The Government argues that the recommendation was the general counsel's personal property because it was inextricably related to his right to pursue his profession as an attorney. See id., at 34-35. But that argument is clearly wrong: If the general counsel had left the State's employ before submitting the recommendation, he could not have taken the recommendation with him, and he certainly could not have given it or sold it to someone else. Therefore, it is obvious that the recommendation (and the right to make it) were inextricably related to the general counsel's position with the government, and not to his broader personal right to pursue the practice of law.
The general counsel's job surely had economic value to him, as did his labor as a lawyer, his law license, and his reputation as an attorney. But the indictment did not allege, and the jury did not find, that petitioner attempted to obtain those things. Nor would such a theory make sense in the context of this case. Petitioner did not, for example, seek the general counsel's legal advice or demand that the general counsel represent him in a legal proceeding. Cf. United States v. Thompson, 647 F.3d 180, 186-187 (C.A.5 2011) (a person's labor is property capable of being extorted). Nor did petitioner attempt to enhance his own ability to compete with the general counsel for legal work by threatening to do something that would, say, tarnish the general counsel's reputation or cause his law license to be revoked. Cf. Tropiano, 418 F.2d, at 1071-1072, 1075-1077 (threats to competitor in order to obtain customers constitute extortion); United States v. Zemek, 634 F.2d 1159, 1173-1174 (C.A.9 1980) (same); United States v. Coffey, 361 F.Supp.2d 102, 108-109 (E.D.N.Y.2005) (the right to pursue a lawful business is extortable property under the Hobbs Act).
The Court holds that petitioner's conduct does not amount to attempted extortion, but for a different reason: According to the Court, the alleged property that petitioner pursued was not transferrable and therefore is not capable of being "obtained." Ante, at 2724 - 2725, 2726 - 2727. Because I do not believe that the item in question constitutes property, it is unnecessary for me to determine whether or not petitioner sought to obtain it.
* * *
If Congress had wanted to classify internal recommendations pertaining to government decisions as property, I think it would have spoken more clearly than it did in the Hobbs Act. But even if the Hobbs Act were ambiguous on this point, the rule of lenity would counsel in favor of an interpretation of the statute that does not reach so broadly, see Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 409, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003). This is not to say that the Government could not have prosecuted petitioner for extortion on these same facts under some other theory. The question before us is whether the general counsel's recommendation-or the right to make it-constitutes property under the Hobbs Act. In my view, they do not.
For these reasons, I concur in the Court's judgment.
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
Petitioner was also convicted of several counts of interstate transmission of extortionate threats, in violation of 18 U.S.C. § 875(d). Under § 875(d), a person is criminally liable if he, "with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee." In this case, both parties concede that the definition of "extortion" under the Hobbs Act also applies to the § 875(d) counts. We express no opinion on the validity of that concession.
It may well be proper under the Hobbs Act for the Government to charge a person who obtains money by threatening a third party, who obtains funds belonging to a corporate or governmental entity by threatening the entity's agent, see 2 J. Bishop, Criminal Law § 408, p. 334, and n. 3 (9th ed. 1923) (citing State v. Moore, 1 Ind. 548 (1849) ), or who obtains "goodwill and customer revenues" by threatening a market competitor, see, e.g., United States v. Zemek, 634 F.2d 1159, 1173 (C.A.9 1980). Each of these might be considered "obtaining property from another." We need not consider those situations, however, because the Government did not charge any of them here.
Also revealing, the New York code prohibited conspiracy "[t]o prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation." N.Y. Penal Law § 580(5) (1909) (emphasis added). That separate codification, which Congress did not adopt, is further evidence that the New York crime of extortion (and hence the federal crime) did not reach interference with a person's right to ply a lawful trade, similar to the right claimed here.
Seeking to extract something from the void, the Government relies on cases that interpret a provision of the New York code defining the kinds of threats that qualify as threats to do "unlawful injury to the person or property," which is what the extortion statute requires. See N.Y. Penal Code § 553 (1881); N.Y. Penal Law § 851 (1909). Those cases held that they include threats to injure a business by preventing the return of workers from a strike, People v. Barondess, 133 N.Y. 649, 31 N.E. 240, 241-242 (1892) (per curiam ), and threats to terminate a person's employment, People ex rel. Short v. Warden, 145 App.Div. 861, 130 N.Y.S. 698, 700-701 (1911), aff'd, 206 N.Y. 632, 99 N.E. 1116 (1912) (per curiam ). Those cases are entirely inapposite here, where the issue is not what constitutes a qualifying threat but what constitutes obtainable property.
The Government's attempt to distinguish Scheidler is unconvincing. In its view, had the protesters sought to force the clinics to provide services other than abortion, extortion would have been a proper charge. Petitioner committed extortion here, the Government says, because he did not merely attempt to prevent the general counsel from giving a recommendation but tried instead to force him to issue one. That distinction is, not to put too fine a point on it, nonsensical. It is coercion, not extortion, when a person is forced to do something and when he is forced to do nothing. See, e.g., N.Y. Penal Law § 530 (1909) (it is a misdemeanor to coerce a "person to do or to abstain from doing an act"). Congress's enactment of the Hobbs Act did not, through the phrase "obtaining of property from another," suddenly transform every act that coerces affirmative conduct into a crime punishable for up to 20 years, while leaving those who "merely" coerce inaction immune from federal punishment.
The concurrence contends that the "right to make [a] recommendation" is not property. Post, at 2729 (ALITO, J., concurring in judgment). We are not sure of that. If one defines property to include anything of value, surely some rights to make recommendations would qualify-for example, a member of the Pulitzer Prize Committee's right to recommend the recipient of the prize. I suppose that a prominent journalist would not give up that right (he cannot, of course, transfer it) for a significant sum of money-so it must be valuable. But the point relevant to the present case is that it cannot be transferred, so it cannot be the object of extortion under the statute.
To recognize that an internal recommendation regarding a government decision is not property does not foreclose the possibility that threatening a government employee, as the government's agent, in order to secure government property could qualify as Hobbs Act extortion. Here, after all, petitioner's ultimate goal was to secure an investment of money from the government. But the jury found only that petitioner had attempted to obtain the general counsel's recommendation, so I have no occasion to consider whether a Hobbs Act conviction could have been sustained on a different legal theory.
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_casetyp1_7-3-2
|
H
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
George LANGE, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee.
No. 82-2461.
United States Court of Appeals, Eighth Circuit.
Submitted March 28, 1983.
Decided April 1, 1983.
Herschel H. Friday, Elizabeth J. Robben, Little Rock, Ark., for appellee.
Charles L. Honey, Prescott, Ark., for appellant.
Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and FAGG, Circuit Judge.
PER CURIAM.
This is an appeal by plaintiff George Lange from the district court’s judgment entered on a jury verdict in favor of the defendant Missouri Pacific Railroad Company (Mo Pac). On appeal, Lange contends that the district court erred in permitting him to be cross-examined on payments he received from a collateral source. We affirm.
This is a diversity case arising out of a back injury Lange sustained during the course of his employment in Emmet, Arkansas. The accident occurred while Lange was opening a railroad car owned by Mo Pac. Lange brought this negligence action against Mo Pac alleging failure to maintain the railroad car in a reasonably safe condition.
On direct examination by his attorney Lange testified that he returned to work immediately after undergoing surgery for the back injury because he had to support his family and had no savings or disability income to fall back upon. The defense counsel objected to this testimony, but the trial court ruled that it was permissible to show why the plaintiff returned to work so quickly. Prior to cross-examination of Lange defense counsel obtained a ruling from the trial court that the availability of disability benefits could be shown on cross-examination. Thereafter, defense counsel elicited testimony from Lange showing that he applied for workmen’s compensation benefits several months after the surgery and received a lump sum payment retroactive to the date of the.surgery in May, 1981 at the rate of $140.00 per week.
Ordinarily payments received from collateral sources are not allowed to be introduced into evidence. Hannah v. Haskins, 612 F.2d 373, 375 (8th Cir.1980). However, when the plaintiff makes specific reference to collateral source payments on direct examination, the scope of permissible inquiry is set by the direct examination and the usual rules on cross-examination apply. 612 F.2d at 375. “Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” Fed.R.Evid. 611(b). The permissible scope of cross-examination rests in the trial court’s discretion. 612 F.2d at 376.
The Arkansas Supreme Court has also approved the introduction of evidence on collateral source payments when it is relevant to some issue in the case. The payments become relevant when the plaintiff’s direct testimony misleads the jury on some issue in the case and cross-examination of the plaintiff on evidence of collateral source payments is necessary to rebut the testimony. York v. Young, 271 Ark. 266, 608 S.W.2d 20, 21-22 (Ark.1980) (In action for damages arising from a motor vehicle collision, plaintiff’s testimony that he had not repaired his truck after the collision due to lack of funds could be rebutted on cross-examination by evidence of plaintiff’s insurance coverage.).
The evidence concerning Lange’s receipt of workmen’s compensation benefits was relevant to test the credibility of plaintiff’s assertion that he had to return to work immediately after the surgery because he had no' disability income. See Gladden v. P. Henderson & Co., 385 F.2d 480 (3d Cir.1967), cert. denied, 390 U.S. 1013, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968). It was also necessary to protect the full range of inquiry allowed by cross-examination, a fundamental part of the adversary system. 612 F.2d at 376. Accordingly, we hold that the trial court did not abuse its discretion by allowing cross-examination of plaintiff on the issue of benefits.
Affirmed.
. The Honorable H. Franklin Waters, Chief Judge, United States District Court, Western District of Arkansas.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer:
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songer_appel1_3_3
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant.
In re DARTMONT COAL CO. UNITED STATES v. BANK OF MT. HOPE.
No. 3070.
Circuit Court of Appeals, Fourth Circuit.
Jan. 13, 1931.
Clarence E. Dawson, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C. (James Damron, U. S. Atty., and Okey P. Keadle, Asst. U. S. Atty., both of Huntington, W. Va., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., on the brief), for the United States.
Herman L. Bennett, of Charleston, W. Va. (Dillon Mahan & Holt, of Fayetteville, W. Va., Brown, Jackson & Knight, of Charleston, W. Va., C. E. Mahan, Jr., of Fayetteville, W. Va., and C. W. Moxley, óf Charleston, W. Va., on the brief), for appellee.
Before NORTHCOTT, Circuit Judge, and COLEMAN and GLENN, District Judges.
NORTHCOTT, Circuit Judge.
Dartmont Coal Company, a West Virginia corporation, incurred a liability to the United States of America for income taxes for the year 1920, in the amount of $11,010.-01, which was duly assessed in August, 1926. On October 14,1926, the collector of internal revenue for the district of West Virginia filed a notice of tax lien fqr the amount of this tax upon the property of the taxpayer in the office of the clerk of the District Court of the' United States for the Southern District of West Virginia, at Charleston, in Kanawha county. On April 27, 1927, the Legislature of the state of West Virginia passed an act authorizing, among other things, the filing by the United States of notices of its tax liens in the offices of the clerks of the county courts of said state, pursuant to the provisions of section 3186 of the United States Revised Statutes, as amended.
By deed of trust, dated January 30,1929, recorded in the office of the clerk of the county court of Boone county, W. Va., on February 11, 1929, the Dartmont Coal Company conveyed to C. E. Mahan, Jr., trustee, certain of its real estate in trust to secure notes payable to the Bank of Mt. Hope, the appellee herein.
The coal company being subsequently adjudicated a bankrupt, an order was entered on September 3, 1929, by the referee in the bankruptcy proceedings holding the lien of the Bank of Mt. Hope under its deed of trust superior and prior to the claim of the United States for the income tax. Upon a hearing before the United States District Court for review and reversal, the referee’s order was affirmed. This appeal is prosecuted from that decision.
Section 3186, Revised Statutes, as amended by the Act of February 26, 1925 (43 Stat. 994 [26 USCA § 115 note]), reads as follows :
“Sec. 3186. That if any person liable to pay any tax neglects or refuses to pay the same after demand, the amount shall be a lien in favor of the United States from the time when the assessment list was received by the collector, except when otherwise provided, until paid, with the interest, penalties, and costs that may accrue in addition thereto upon all property and rights to property belonging to such person: Provided, however, That such lien shall not be valid as against any mortgagee, purchaser, or judgment creditor until notice of such lien shall be filed by the collector in the office of the clerk of the district court of the district within which the property subject to such lien is situated: Provided further, That whenever any State by appropriate legislation authorizes the filing of such notice in the office of the.registrar or recorder of deeds of the counties of that State, and in the State of Louisiana in the parishes thereof, and in -the States of Connecticut, Rhode Island, and Vermont in the office of the registrar or recorder of deeds or town or city clerk having’ custody of the land records of the towns and cities, then such lien shall not be valid in that State against any mortgagee, purchaser, or judgment creditor until such notice shall be filed in the office of the registrar or recorder of deeds of the county or counties, or parish or parishes in the State of Louisiana, or in the office of the registrar or recorder of deeds or town or city clerk having custody of the land records in the States of Connecticut, Rhode Island, and Vermont of the towns or cities within which the property subject to the lien is situated.”
The Act of April 27, 1927, of the West Virginia Legislature (chapter 56, Acts of Regular Session of 1927), reads as follows:
“Be it enacted by the Legislature of West Virginia: That a uniform law relating to the filing of notices of liens for federal taxes and certificates for discharging such liens be enacted, so as to read as follows:
“Section 1. Pursuant to the authority of paragraph three thousand one hundred and eighty-six of the United States Revised Statutes, notices of federal tax liens and certificates discharging such liens may be filed in the offices of the clerk of the county court of one or more counties of the state.
“See. 2. As provided in said paragraph three thousand one hundred and eighty-six, no such tax shall be a valid lien as against any mortgagee, purchaser, or judgment creditor, until such notice shall be filed in the office of the clerk of the county court of the county or counties within which the property subject to the lien is situated.
“See. 3. Notices of federal tax liens heretofore filed with the clerk of a federal district court or certified transcripts thereof may be filed by the collector of internal revenue of the district in the office of the clerk of the county court of one or more counties in this state; Provided, that such liens heretofore filed with a clerk of a federal district court shall not continue valid liens for more than four months after the taking effect of this act, as against any mortgagee, purchaser, or judgment creditor becoming such after the expiration of such four months, unless such, notice or transcript shall be filed as above provided. After the filing of sueh notice or a certified transcript thereof with the clerk of the county court, following the expiration of sueh four months period, the federal tax lien shall be valid as against mortgagees, purchasers, or judgment creditors becoming sueh subsequent to such filing. If this section shall be held not authorized by federal law, it shall not affect the validity of the other sections of this act.
“Sec. 4. The procedure with respect to filing and indexing shall be the same as that respecting other similar liens so far as applicable.
“Sec. 5. The fee for filing each notice of lien shall be twenty-five cents and for each discharge thereof twenty-five cents.”
It is well settled that no state has the power to enact legislation affecting federal tax liens, except as permitted by an act of Congress. In United States v. Snyder, 149 U. S. 210, 13 S. Ct. 846, 847, 37 L. Ed. 705, Mr. Justice Shiras said: “If the United States, proceeding in one of their own courts, in the collection of a tax admitted to be legitimate, can be thwarted by the plea of a state statute prescribing that such a tax must be assessed and recorded under state regulation, and limiting the time within which such tax shall be a lien, it would follow that the potential existence of the government of the United States-is at the mercy of state legislation.”
It was early definitely settled that the states are prohibited from passing any act which shall be repugnant to the laws of the United States. In McCulloch v. Maryland, 4 Wheat. 316, 436, 4 L. Ed. 579, Chief Justice Marshall forever settled this question when he said: “The Court has bestowed on this subject its most deliberate consideration. The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared.”
The Legislature of the state of West Virginia clearly had no power to enact section 3 of the Act of April 27, 1927, above quoted. Indeed, the Legislature itself seems to have been aware of this fact, as is shown in the last sentence in section 3, and that the Legislature had no such right was admitted by counsel for appellee in the argument before this court. It then follows that, if any authority exists to support the contention of appellee that the government’s lien to remain valid must be recorded as provided in section 3 of the Act of April 27, 1927, of the West Virginia Legislature, it must be found in the act of Congress itself.
A reading of section 3186, Revised Statutes, as amended, shows that no such authority is expressly given in the statute, nor in our opinion can any sueh construction be given the statute by inference. Section 3 of the Act of April 27, 1927, of the West Virginia Legislature, was never in any way accepted or concurred in by the government of the United States. On the contrary, the Commissioner of Internal Revenue by Internal Revenue Bulletin VI, No. 26, on June 27, 1927, expressly rejected this section in the following language: “The Act of April 27, 1927, passed by the legislature of West Virginia, effective from the date of its enactment, is accepted by the Bureau of Internal Revenue (except the provisions of sections 2 and 3 thereof) as the ‘appropriate legislation’ referred'to in the second proviso of section 3186, Revised Statutes, as amended by the Act of March 4, 1913 (37 Stat. 1016), and the Act of February 26, 1925 (43 Stat. 994), authorizing the filing of notices of Federal tax liens with certain designated county or other officials.”
It is admitted that the lien of the government, when the notice was filed in the office of the clerk of the District Court of the United States for the Southern District of West Virginia, in 1926, was a good and valid lien, and no subsequent act of the Legislature of West Virginia could in any way impair its validity. In United States v. Curry (D. C.) 201 F. 371, 373, Judge Rose said: °“In that case, as in all others which have been called to my attention or which I have myself found, it has been held that, when the requirements of the assessment and the demand have been complied with, the lien of the government is superior to that of any one acquiring any interests in the property after the date of demand. The government’s lien is unaffected by the fact that a subsequent incumbrancer or purchaser became such without knowledge that the government had any interest in the property or claim upon it.”
See, also, Blacklock v. United States, 208 U. S. 75, 28 S. Ct. 228, 52 L. Ed. 396; United States v. Pacific Railroad (C. C.) 1 F. 97; United States v. Turner, 28 Fed. Cas. page 232, No. 16,548.
In 1913, Congress of the United States granted to the Legislatures of the various states the 'right to enact enabling legislation requiring government liens, in order to be valid, to be filed in the office of the registrar or the recorder of deeds of a county within which the property subject to the lien is situated. Such an act should be strictly construed in favor of the government. United States v. Dickson, 15 Pet. 141,10 L. Ed. 689; Cornell v. Coyne, 192 U. S. 418, 24 S. Ct. 383, 386, 48 L. Ed. 504; Hannibal, etc., Railroad Co. v. Packet Co., 125 U. S. 260, 8 S. Ct. 874, 31 L. Ed. 731.
In the case of Cornell v. Coyne, supra, the Supreme Court said: “But if there be any doubt as to the proper construction of this statute (and we think there is none), then that construction must be adopted which is most advantageous to the interests of the government. The statute, being a grant of a privilege, must be construed most strongly in favor of the grantor.”
The Legislature of the state of West Virginia did not see fit to avail itself of the permission given by the act of Congress to pass the enabling legislation until the year 1927. In the meantime, the government lien in this ease had been recorded and become valid as against the property of the coal company. No subsequent act of the Legislature of West Virginia could, of' itself, in any way affect the validity of that lien.
It follows that the action of the court below in declaring the lien of the appellee to be prior to that of the government was erroneous, and the order of the court below is reversed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant?
A. United States - in corporate capacity (i.e., as representative of "the people") - in criminal cases
B. United States - in corporate capacity - civil cases
C. special wartime agency
D. Other unlisted federal agency (includes the President of the US)
E. Unclear or nature not ascertainable
Answer:
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songer_procedur
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
In re LAWSON SQUARE, INC. FIRSTSOUTH, F.A., Appellee, v. LAWSON SQUARE, INC., Appellant.
No. 86-2183.
United States Court of Appeals, Eighth Circuit.
Submitted April 3, 1987.
Decided April 15, 1987.
James J. Glover, Little Rock, Ark., for appellant.
Richard L. Ramsay, Pine Bluff, Ark., for appellee.
Before ROSS, ARNOLD, and MAGILL, Circuit Judges.
ARNOLD, Circuit Judge.
This case requires us to determine what legal ceiling, if any, exists for interest rates on loans secured by a first lien on residential real property in Arkansas. We hold that the governing statute is Section 501(a)(1) of the Depository Institutions Deregulation and Monetary Control Act of 1980, 12 U.S.C. § 1735Í-7 note, and that there is no legal limit on interest rates on loans secured by a first lien on residential real property in Arkansas, so long as the requirements of that Section are met.
I.
Lawson Square, Inc., a developer of residential real estate, conceived a project to purchase an apartment complex in Fayetteville, Arkansas, modify the apartments, and resell them as condominiums. In order to finance the purchase and the costs of resale, Lawson Square obtained a loan from FirstSouth, F.A., a federally insured savings and loan association which had its principal place of business at Pine Bluff, Arkansas. The one-year promissory note, which was executed on January 26, 1984, was in the amount of some $1,700,000, and was secured by a first mortgage on the premises of the condominium project. Interest on the note was contracted at a variable rate, to be set monthly at four per cent, above the rate payable on a 90-day Treasury Bill on the last day of the preceding month. A subsequent amendment to the agreement allowed FirstSouth to collect a $1,000 “release fee” upon the resale of each unit, and to recover 105% of the appraised value of each unit as a payment on principal upon resale and release from the lien.
Lawson Square eventually ran into financial difficulties, defaulted on the note, and filed a Chapter 11 petition in Bankruptcy Court. FirstSouth sought relief from the automatic stay; Lawson Square resisted the motion, alleging that the contract interest rate was usurious; the Court granted relief to FirstSouth. From the Bankruptcy Court’s decision of May 14, 1986, 61 B.R. 145 (Bankr.W.D.Ark.1986), affirmed by the District Court in an unpublished opinion on August 12, 1986, Lawson Square appeals. Both courts below held the loan not usurious. For the reasons which follow, we affirm.
The Bankruptcy Court ruled that, assuming the promissory note was not usurious, the amount of the debt exceeded the collateral, and the motion for relief from the automatic stay would be granted. Lawson Square does not dispute this ruling. The only question before us is whether the contracted rate of interest (Treasury-Bill rate plus four per cent.) exceeded any limitation on interest rates which might be provided by Arkansas or federal law. Under both the Arkansas usury limit and the federal limit which Lawson Square claims may apply, unpaid interest on a usurious contract is forfeited, and interest already paid may be recovered in a double amount. If this contract were in fact usurious, the forfeiture of unpaid interest and double recovery of interest already paid might bring the total amount of indebtedness within the value of the collateral. In that case, the creditor would be adequately protected, and denial of the creditor’s motion for relief would have been appropriate.
II.
Amendment 60 to the Arkansas Constitution (now found at Ark. Const. Art. 19, § 13) provides that for “General Loans” (a term which, apart from federal law, would include the present loan) “[t]he maximum lawful rate of interest on any contract entered into after the effective date hereof shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract.” Ark. Const. Art. 19, § 13(a)(i). If this provision governed, the present loan would be usurious.
The parties agree, however, that the applicability of Amendment 60 is affected in some way by the Depository Institutions Deregulation and Monetary Control Act of 1980, Pub.L. 96-221, 94 Stat. 132. They disagree as to which part of the Act is relevant, and its effect.
The Act was a comprehensive overhaul of the national scheme of regulation of banks and other lending institutions. Congress was especially concerned about hardships which the unusually high interest rates of that time wrought on financial institutions in states with strict usury laws, and, as a consequence, on potential borrowers who found it difficult to get money. The former usury limit in Arkansas (10% on all loans) was particularly mentioned in Congressional debate. See, e.g., 126 Cong. Rec. 6906 (1980) (statement of Sen. Pryor). Of the five separate preemptions of state usury limits included in the Act, two are applicable to the type of transaction in this case.
The first, Section 522 of the Act, applies to any loan made by a federally insured savings and loan association. It provides that
[i]f the applicable rate prescribed in this section exceeds the rate an insured institution (which, for the purpose of this section, shall include a Federal association the deposits of which are insured by the Federal Deposit Insurance Corporation) would be permitted to charge in the absence of this section, such institution may, notwithstanding any State constitution or statute which is hereby preempted for the purposes of this section, take, receive, reserve, and charge on any loan or discount made, or upon any note, bill of exchange, or other evidence of debt, interest at a rate of not more than 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where such institution is located or at the rate allowed by the laws of the State, territory, or district where such institution is located, whichever may be greater.
12 U.S.C. § 1730g(a).
The second provision of the Act which we must consider is Section 501, which is entitled “Mortgage Usury Laws; Mortgages,” and reads in pertinent part as follows:
(a)(1) The provisions of the constitution or the laws of any State expressly limiting the rate or amount of interest, discount points, finance charges, or other charges which may be charged, taken, received, or reserved shall not apply to any loan, mortgage, credit sale, or advance which is—
(A) secured by a first lien on residential real property, by a first lien on all stock allocated to a dwelling unit in a residential cooperative housing corporation, or by a first lien on a residential manufactured home;
(B) made after March 31, 1980; and
(C) described in section 527(b) of the National Housing Act (12 U.S.C. 1735f-5(b)), except that for the purpose of this section—
(i) the limitation described in section 527(b)(1) of such Act that the property must be designed principally for the occupancy of from one to four families shall not apply;
(ii) ...
12 U.S.C. § 1735Í-7 note.
The two provisions quoted above are not totally exclusive of each other; for certain loans, they overlap. Section 522 can apply to any loan, to be used for any purpose, so long as the lender is a federally insured savings and loan association; Section 501 can apply only to loans or mortgages which are secured by first liens on the kinds of residential property mentioned in that section, but the source of the money may be any of a number of types of financial institutions.
Lawson Square insists that the first provision applies, but not the second; First-South says that the second, but not the first, applies; it is also conceivable that both apply, or neither. The possible results are as follows: (1) if Lawson Square, the debtor, is correct, and Section 522 applies here, then by the terms of that section we must look to Arkansas Amendment 60 for the legal limit of interest which may be charged. That limit is the federal discount rate plus five per cent., and the loan would be usurious. See note 3 supra. (2) If FirstSouth, the lender, is right, then the “limit” of Section 501, i.e., no limit at all, applies, and the loan is of course not usurious. (3) If both provisions apply, then Section 528 of the same Act provides that the higher of the two rates, that is, the Section 501 “no limit,” must prevail. (4) If neither federal preemption section fits, then we must apply the Arkansas law.
Once we have described the labyrinth, its solution is straightforward. We look first to the words of Section 522, noting at the outset that it is contained in “Part C: Other Loans” (as distinguished from “Part A: Mortgage Usury Laws” and “Part B: Business and Agricultural Loans”). Assuming for the moment that those two parts do not apply, we note immediately that the very first clause of Section 522 reads as follows: “[i]f the applicable rate prescribed in this section exceeds the rate an insured institution ... would be permitted to charge in the absence of this section ... The “applicable rate” referred to is the federal discount rate plus one per cent.; the rate that would be permitted in the absence of this section is the Arkansas Constitution’s present limit of federal discount rate plus five per cent. Attempting to substitute these terms for the words which represent them produces a false statement, for in fact the “applicable rate” does not exceed the “permitted rate.” That being the case, we need go no further in Section 522; we know that it does not apply in this instance.
Section 501 completely overrides state usury limits for mortgages and other financing arrangements which are secured by first liens on residential real property. Lawson Square and FirstSouth have stipulated that this loan is secured by “a first lien on residential real property.” District Court Joint Ex. 1. Having preempted any State usury limitations over such loans, Section 501 does not impose a federal limit. It does, however, allow a state to reassert a usury limitation through passage of a law or initiated measure “which states explicitly and by its terms that such State does not want the provisions of subsection (a)(1) to apply with respect to loans, mortgages, credit sales, and advances made in such State.” Pub.L. 96-221, § 501(b)(2), found in 12 U.S.C. § 1735Í-7 note. The Legislature and voters of Arkansas had the opportunity to override Section 501 when they considered Amendment 60 in 1982. But instead of reasserting a State usury limit on mortgage interest rates, that amendment included a section which specifically endorsed the federal preemption. It reads as follows: “The provisions hereof are not intended and shall not be deemed to supersede or otherwise invalidate any provisions of federal law applicable to loans or interest rates including loans secured by residential real property.” Ark. Const. Art. 19, § 13(d)(ii), as amended 1982. The result of Section 501’s federal preemption of State usury laws as to residential real property loans, and Arkansas’s choice not to reassert a limit, is that there is no limit on the legal rate of interest which may be charged on such a loan in Arkansas, so long as the loan is secured by a first lien and the other requirements of Section 501 are met. It follows that, if the loan in question on this appeal is secured by “residential real property,” there is no legal limit on interest, the loan is not usurious, and the courts below were correct in relieving FirstSouth from the automatic stay.
III.
Lawson Square, however, has another string to its bow. In addition to its argument, just rejected, that Section 501 does not apply at all in the present situation, it also argues that the loan involved in this case is not a loan “secured by a first lien on residential real property” within the meaning of Section 501(a)(1)(A). It points out that this loan was obtained by a builder or developer of residential real property, as opposed to an individual resident owner. It points to a statement made on the floor of the House of Representatives immediately before the vote by which the House agreed to the conference report on the bill that became Public Law 96-221. The colloquy relied on went as follows:
MR. MATTOX. Mr. Speaker, the next question is this: Does a loan issued to a builder, a homebuilder, for the purpose of constructing residential dwellings for the purpose of resale to homebuyers constitute a business loan, or is it a residential loan?
MR. ST. GERMAIN. Mr. Speaker, this would be business financing. It is a business loan in that there is indeed interim financing: Therefore, it would be a business loan.
126 Cong.Rec. 6983 (1980).
It might be thought, and indeed FirstSouth argues, that this contention is foreclosed by the stipulation of the parties that the loan was secured by “a first lien on residential real property.” On the other hand, the stipulation could, we suppose, be read simply as an agreement that the property was “residential” in fact, that is, that structures in which people lived, or were to live, had been built on it, thus leaving open the question of law whether the property was “residential” as that term is used in Section 501(a)(1)(A). As a rule, stipulations are not considered binding as to issues of law, and it is conceivable that even a word like “residential,” which has a well-understood meaning in the world, as opposed to in court, might have been used by Congress as a term of art.
We consider then the meaning and legal effect of the colloquy between Mr. Mattox and Mr. St. Germain. We note first that the meaning is somewhat uncertain as applied to the particular facts of the ease before us. The question put by Mr. Mattox appears to contemplate property on which no residential dwellings exist at the time of the loan. He refers to a loan issued for the purpose of “constructing residential dwellings.” In the present case, by contrast, there was already an apartment complex on the property in question. The purpose of the loan was simply to modify the apartments so that they would be attractive for purchase as condominiums. If property on which an apartment complex is already located is not “residential,” it is hard to see what would be. It is, on the other hand, entirely possible that property on which dwelling units are to be, but have not yet been, built, might be considered as something other than “residential” at the time of the loan.
There are other difficulties with the use of legislative history of this kind. The statement, whatever its meaning, may not have been heard by many members of the House of Representatives, and was certainly not heard by any members of the other body, which agreed to the conference report on the same day, March 27, 1980. We think the safer course is to read the statement narrowly, as applying only to property on which no dwelling units existed at the time the loan was made. To read it more broadly would bring it into arguable collision with the plain words of the statute, and when these words are clear, it is often said that legislative history may not be resorted to. E.g., United States v. Missouri Pacific R. Co., 278 U.S. 269, 278, 49 S.Ct. 133, 136, 73 L.Ed. 322 (1929). Perhaps, as some law professors are fond of saying, there is no such thing as unambiguous words. But here, even if there is some arguable ambiguity in the statute, there is also ambiguity in the legislative history, and the words of the statute, if not absolutely plain, are plainer than the words of the colloquy between Mr. Mattox and Mr. St. Germain, in the present context. Whatever doubts exist should be resolved, we think, by interpreting the colloquy narrowly, so as to avoid a conflict between it and the most natural reading of the words of the Act.
We conclude, therefore, that the loan involved here was secured by a first lien on residential real property within the meaning of Section 501, that this provision, rather than Section 522, is the governing law, and that the State of Arkansas has not overridden the federal preemption of interest-rate limits contained in Section 501. Accordingly, the interest charged on this loan was legal, and the judgment of the District Court, affirming the judgment of the Bankruptcy Court, is
Affirmed.
. The Hon. Robert F. Fussell, Chief United States Bankruptcy Judge for the Eastern and Western Districts of Arkansas.
. The Hon. H. Franklin Waters, Chief Judge, United States District Court for the Western District of Arkansas.
. During at least four months during 1984, the floating rate of interest charged on this loan exceeded the maximum rate allowable under the unmodified provisions of Amendment 60(a)(i), as is shown in the following chart:
. Ark. Const. Art. 19, § 13 (1874, repealed 1982).
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_applfrom
|
J
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Arnold R. VASBINDER, Plaintiff-Appellee, v. Basil Y. SCOTT and Richard M. Switzer, Defendants-Appellants.
No. 830, Docket 91-7884.
United States Court of Appeals, Second Circuit.
Argued Jan. 30, 1992.
Decided Sept. 30, 1992.
Daniel Smirloek, Asst. Atty. Gen. of the State of N.Y., Albany, N.Y. (Robert Abrams, Atty. Gen., Peter H. Schiff, Deputy Sol. Gen., and Peter G. Crary, Asst. Atty. Gen. of the State of New York, of counsel), for defendants-appellants.
John Alden Stevens, Ithaca, N.Y. (Williamson, Clune & Stevens, of counsel), for plaintiff-appellee.
Before: WINTER, PRATT, and MAHONEY, Circuit Judges.
MAHONEY, Circuit Judge:
This appeal follows a jury trial solely on the issue of punitive damages. Defendants-appellants Basil Y. Scott and Richard M. Switzer appeal from a judgment of the United States District Court for the Northern District of New York, Thomas J. McA-voy, Judge, entered June 3, 1991 after a jury trial, that awarded plaintiff-appellee Arnold R. Vasbinder $150,000 in punitive damages against each defendant-appellant, and from a subsequent order of the district court entered August 27, 1991 that denied defendants-appellants’ motion to reduce the awards of punitive damages. For the reasons that follow, we vacate the judgment and remand to the district court with the instruction to enter judgment in favor of Vasbinder in the amounts of $30,000 and $20,000 against Scott and Switzer, respectively, or at Vasbinder’s option to conduct a new trial on the issue of punitive damages.
Background
The underlying facts of this litigation are set forth in our opinion deciding the initial appeal in this case, Vasbinder v. Ambach, 926 F.2d 1333, 1335-37 (2d Cir.1991). We summarize here only those facts necessary for resolution of the issue of punitive damages presented on this appeal.
At the outset of 1982, Vasbinder was a statewide coordinator of placement services for handicapped persons for the Office of Vocational Rehabilitation of the New York State Department of Education (the “OVR”). Id. at 1335. Switzer was Vasbin-der’s immediate supervisor; Switzer reported to Scott, the overall head of the OVR. Id. Up until that time, Vasbinder had always received excellent employment evaluations. Id.
In May 1982, while participating in an audit, Vasbinder discovered what he deemed to be improper duplicate billing and overcharging in the administration of a federally funded program. Id. at 1335-36. These apparent improprieties were thought by Vasbinder to involve individuals with close personal relationships to Switzer. Id. at 1336. In August 1982, Vasbinder reported his concerns to the Federal Bureau of Investigation (“FBI”), which opened an investigation into the matter. Id.
In October 1982, Vasbinder revealed his involvement with the FBI to Scott, and his relationship with Scott and Switzer became troubled. Id. at 1336-37. Vasbinder’s performance evaluations by Scott and Switzer declined dramatically. Id. In December 1982, Vasbinder was stripped of some of his duties as statewide coordinator. Id. at 1337. On June 1, 1983, Vasbinder received a letter from the FBI reporting that “there is no indication of a violation of law which would merit federal prosecution.” Id. Nine days later, Vasbinder was terminated as statewide coordinator and reassigned to a diminished position with a corresponding reduction in salary. Id.
Vasbinder then brought an action pursuant to 42 U.S.C. § 1983 (1988) against Scott and Switzer in the Northern District of New York, alleging that he had been discharged in violation of his First Amendment rights. Id. The matter was tried before a jury, which rendered a verdict in Vasbinder’s favor for backpay (later determined by the court to amount to $32,-529.49), $50,000 for emotional distress, and punitive damages in an undetermined amount. Id. at 1338-39. On defendants’ motion, the trial court vacated the award of punitive damages, holding that defendants’ conduct was not outrageous and thus did not warrant the imposition of such damages. Id. Vasbinder appealed the district court’s decision regarding punitive damages, and Scott and Switzer cross-appealed the award of compensatory damages. Id. at 1339.
This court reversed the judgment of the district court only insofar as it had set aside the jury's award of punitive damages. Id. at 1344. With respect to that issue, we held that:
[I]t was not irrational or impermissible for the jury to infer that defendants’ personnel actions toward Vasbinder were in callous disregard of his rights, and were intended both to deter other potential whistle-blowers and to disguise the retaliatory nature of their action from outsiders. It was surely within the jury’s discretion to send a message, to Scott and Switzer and to others, that such retaliation is intolerable.
Id. at 1343. Because the district court had dismissed the punitive damages award without first having the jury make a finding as to the amount of punitive damages it would have awarded, the case was remanded for trial solely on the issue of punitive damages. Id. at 1344. The trial on remand consisted of a reading of the transcript of the prior trial and the introduction of additional evidence by the defendants concerning their personal wealth.
It was established at trial that Switzer was fifty-seven years old and employed as the executive director of the Bulova School in Queens, New York, an institution which offers vocational training to disabled adults. He receives a salary of $75,000 a year. Switzer also receives approximately $29,000 per year in retirement income from a state pension, which will be reduced to $27,000 at age sixty-two. At approximately that time, he will be eligible for an additional $30,000 per year from another pension source. Switzer’s wife had recently been employed as a sales clerk at a department store, and her projected annual earnings were $7,500.
The Switzers’ family assets include a $130,000 equity in their jointly owned family home and approximately $90,000 in savings. Mrs. Switzer also controls a bank account containing approximately $50,000. This money represents an inheritance received by Mr. Switzer that was transferred to his wife and is to be used to purchase property for the Switzers’ children. The Switzers’ liabilities include, the mortgage on their home, $15,000 owed on an automobile, and an estimated $4,000 in annual real estate taxes. The Switzers anticipate the need to finance the remaining three years of their youngest child’s college education.
The evidence as to Scott showed that he is sixty-six years old and hopes to retire in a year or two. He is currently employed as vice president for administration and finance at Kutztown University in Pennsylvania, where he earns approximately $77,-000 a year. Scott also receives a New York State pension of approximately $44,-000 a year, and has investments totalling approximately $360,000. Scott’s wife has no retirement benefits. The Scotts jointly own, free from encumbrances, a condominium valued at $150,000 that is used as the family home.
After all the evidence was presented, the jury returned separate verdicts in the amount of $150,000 against both Scott and Switzer. Scott and Switzer then moved for judgment notwithstanding the verdict pursuant to Fed.R.Civ.P. 50(b) and 59 on the ground that the punitive damage awards were excessive and should be reduced. The trial court, while expressing sympathy for their position, denied the motion, deeming our opinions in Hughes v. Patrolmen’s Benevolent Ass’n, 850 F.2d 876 (2d Cir.), cert. denied, 488 U.S. 967, 109 S.Ct. 495, 102 L.Ed.2d 532 (1988), and O’Neill v. Krzeminski, 839 F.2d 9 (2d Cir.1988), to require that ruling.
This appeal followed.
Discussion
The defendants-appellants’ liability for punitive damages having been decided by this court, Vasbinder, 926 F.2d at 1343-44, the only question on appeal is whether the amount of punitive damages awarded by the jury is excessive.
A. Punitive Damages.
An award of punitive damages should be reversed only if it is “ ‘so high as to shock the judicial conscience and constitute a denial of justice.’ ” Hughes, 850 F.2d at 883 (quoting Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir.1978)). Although this is a stringent standard of review, we must remain cognizant that the purpose of punitive damage awards, is to punish the defendant and to deter him and others from similar conduct in the future. Smith v. Wade, 461 U.S. 30, 54, 103 S.Ct. 1625, 1639, 75 L.Ed.2d 632 (1983). Thus, the function of appellate review of punitive damages is to make “certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” Pacific Mut. Life Ins. Co. v. Haslip, — U.S. -, -, 111 S.Ct. 1032, 1045, 113 L.Ed.2d 1 (1991); see also Aldrich v. Thomson McKinnon Sec., Inc., 756 F.2d 243, 249 (2d Cir.1985) (punitive damages should not be awarded beyond amount reasonably necessary to secure purposes of such awards).
Accordingly, an award should not be so high as to result in the financial ruin of the defendant. Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 373 (2d Cir.1988). Nor should it constitute a disproportionately large percentage of a defendant’s net worth. Id. Thus, while a defendant’s conduct is obviously germane to the damages issue, “ ‘even outrageous conduct will not support an oppressive or patently excessive award of damages.’ ” Brink’s Inc. v. City of New York, 546 F.Supp. 403, 413-14 (S.D.N.Y.1982) (quoting Herman v. Hess Oil V.I. Corp., 379 F.Supp. 1268, 1276 (D.V.I.1974), aff'd, 524 F.2d 767 (3d Cir.1975)), aff'd, 717 F.2d 700 (2d Cir.1983). Further, because neither compensation nor enrichment is a valid purpose of punitive damages, an award should not be so large as to constitute “a windfall to the individual litigant.” Aldrich, 756 F.2d at 249; see also Ramsey v. American Air Filter Co., 772 F.2d 1303, 1314 (7th Cir.1985) (collecting cases). Finally, in applying these principles, we must engage in an independent and “ ‘detailed appraisal of the evidence bearing on damages.’ ” Hughes, 850 F.2d at 883 (quoting Grunenthal v. Long Island R.R., 393 U.S. 156, 159, 89 S.Ct. 331, 333, 21 L.Ed.2d 309 (1968)).
Reviewing the record in this case, we find the amount of punitive damages awarded by the jury, $150,000 against each defendant, to be excessive as a matter of law. The evidence presented at the second trial established that Switzer’s net worth is in the neighborhood of $270,000, including his equity in his home. He earns an annual income of $75,000 and receives an annual pension of $29,000; after retirement, he will receive an annual pension of $57,000. The award of $150,000 in punitive damages exceeds fifty percent of the Switzers’ total net worth. The dramatic reduction in the Switzers’ wealth and retirement expectations “shocks the judicial conscience” because it far exceeds what is needed to deter the defendants or similarly situated individuals from engaging in the wrongful conduct addressed in this action.
The award of $150,000 against Scott is similarly excessive. Although Scott’s financial resources are somewhat more extensive than Switzer’s, the punitive damages award by the jury would consume approximately thirty percent of Scott’s net worth, and over forty percent of his liquid assets. Scott testified that he was contemplating retirement. If the jury’s award were upheld, he would suffer a massive loss of retirement income.
This is not to say that we condone the defendants’ conduct or trivialize the harm that they caused Vasbinder. A jury found the defendants’ actions in demoting Vasbin-der for exercising his First Amendment rights to be so extreme and outrageous that compensatory damages were inadequate to punish the wrongful conduct. Vasbinder, 926 F.2d at 1343. That finding was upheld by a panel of this court and cannot be challenged on this appeal. Nor do we slight the need to protect the free speech rights of government “whistle-blowers” or the importance of real deterrence to ensure that such employees continue to speak out on matters of public concern. We conclude, however, that the jury’s award of punitive damages substantially exceeds that necessary to punish the defendants and deter similar conduct in the future, and therefore represents an unjustifiable windfall to Vasbinder.
In light of the evidence of the defendants' personal worth, and in view of their wrongful conduct, we believe that awards of no more than $20,000 as to Switzer and $30,000 as to Scott will satisfy the proper purposes of punitive damages. While significantly less than the jury’s award, these amounts are still a substantial share of the defendants’ assets, and will provide an ample deterrent against similar conduct in the future by the defendants or others.
Before leaving this issue, we briefly address the district court’s conclusion that it was constrained by the law of this circuit to confirm the amount of punitive damages awarded by the jury. The district court was clearly disturbed by the size of the award, but stated that relief could not be granted because of this court’s holdings in Hughes and O’Neill. We do not believe that these cases foreclose a determination that the punitive damages in this case were excessive.
In Hughes, the court upheld punitive damages awards of $175,00 against both the Patrolmen’s Benevolent Association and an individual defendant. 850 F.2d at 879, 883. The defendants were found responsible for intentional infliction of emotional distress arising from a scheme to blame the plaintiff for a fellow officer’s suicide. Id. at 878-79. After the court conducted a review of the evidence bearing on damages, it held that the jury’s finding of malicious and offensive conduct should not be disturbed. Id. at 883. The court’s brief discussion focused on the question whether the defendants’ conduct was sufficiently blameworthy to justify punitive damages. No consideration of the defendants’ net worth or ability to pay was undertaken in Hughes.
The personal wealth of the defendants was similarly not at issue in O’Neill. Although this court upheld jury verdicts for punitive damages of $125,000 and $60,000 against two individual defendants for the severe beating of the plaintiff by a police officer, 839 F.2d at 10, the court did not consider whether the amount of damages constituted a disproportionately large percentage of the defendants’ net worth. Id. at 13-14. Indeed, the defendants’ personal wealth was not put before the jury precisely because the City of New Haven accepted contractual responsibility to indemnify the defendants as to both compensatory and punitive damages. Id. at 13.
In sum, Hughes and O’Neill did not address the issue which forms the basis of our decision, and accordingly are not controlling in this case.
B. Remittitur Procedure.
As we have recently ruled, a court may not simply reduce an award of punitive damages, but must offer the plaintiff the option of a new trial on that issue. Phelan v. Local 305 of the United Ass’n of Journeymen and Apprentices of the Plumbing & Pipefitting Indus., 973 F.2d 1050, 1064 (2d Cir.1992) (collecting cases); see also Smith, 861 F.2d at 375 (requiring district court to order new trial unless plaintiff agrees to reduced award of punitive damages); Aldrich, 756 F.2d at 249 (same).
In Phelan, we cited Kennon v. Gilmer, 131 U.S. 22, 29, 9 S.Ct. 696, 698, 33 L.Ed. 110 (1889), as the leading authority in support of our ruling on this issue. Phelan, 973 F.2d at 1064. Kennon v. Gilmer makes clear that the option of a new trial when a jury determination is set aside as excessive derives from the protection accorded jury trials and factual determinations by the Seventh Amendment. See 131 U.S. at 28-30, 9 S.Ct. at 698-99. This rule has not been uniformly followed in the circuit courts, nor has the impact of the Seventh Amendment on the question been uniformly recognized. See Defender Indus., Inc. v. Northwestern Mut. Life Ins. Co., 938 F.2d 502, 507 (4th Cir.1991) (in banc) (collecting cases). In any event, the question is settled in this circuit.
Conclusion
The judgment of the district court is vacated and the case is remanded with the instruction that the district court enter judgment against Scott and Switzer for punitive damages in the amounts of $30,-000 and $20,000, respectively, or at Vasbin-der’s option conduct a new trial on the issue of punitive damages.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
. We do not consider the extent to which an indemnification agreement is relevant to the amount of punitive damages that may properly be awarded. We note the indemnification agreement in O’Neill only to buttress our conclusion that the O'Neill court did not address the issue whether the award was excessive in light of the defendants’ net worth. In this case, by contrast, the State of New York has taken the position in its brief and oral argument on appeal that it may indemnify the defendants but is not required to do so, and has not made a commitment to provide indemnification.
. The Seventh Amendment provides:
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_district
|
A
|
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".
ROGERS et ux. v. COMMISSIONER OF INTERNAL REVENUE.
No. 8256.
Circuit Court of Appeals, Sixth Circuit.
May 8, 1940.
Theodore B. Benson, of Washington, D. C. (Theodore B. Benson, of Washington, D. C., and H. H. Timmering, of Louisville, Ky., on the brief), for petitioners.
Harry Marselli, of Washington, D. C. (James W. Morris, Sewall Key, and Helen R. Carloss, all of Washington, D. C., on the brief), for respondent.
Before ALLEN, HAMILTON, and ARANT, Circuit Judges-.
ALLEN, Circuit Judge.
Petitioners appeal from a decision of the Board of Tax Appeals (38 B.T.A. 16), assessing deficiencies in income tax and penalties, as follows:
Year
Tax
25% Penalty
50% Penalty
1932 $1,004.93 $363.73 $ 545.68
1933 6,955.03 3,477.52
1934 663.41 298.91
The deficiency for 1934 and the 25% penalty assessed because the return for 1932 was delinquent are not contested.
Petitioners, Charles A. Rogers and Louise Rogers, are husband and wife, residing at Owensboro, Kentucky. They own one-half of the outstanding stock of the M & R Canning Company. During the period in controversy Rogers was also engaged in farming, and was city clerk and tax collector of Owensboro. From time to time both petitioners received money or checks from the Canning Company, which was credited to them on the company books.
The first question is whether the Commissioner erred in including in petitioners’ gross income for the years 1932 and 1933 certain credits to their accounts on the books of the company. The Commissioner gave credit to petitioners for all such charges on the company books which had been explained, but regarded as income to petitioners all credits less the explained charges, and refused to allow petitioners to deduct from income the unexplained charges. In its opinion, the Board said: “Petitioners concede that all amounts added to income by respondent, representing unexplained credits and bank deposits, constitute taxable income derived by them from legitimate sources, with the exception of three items * * *.”
Two of the three items were decided by the Board in favor of petitioners, and that conclusion is not here attacked. The remaining item consists of the amount of $12,000 credited to Rogers’ account on the books of the Canning Company and added to income for 1933.
The Canning Company borrowed $12,-000 from the Ontario Warehouse Company of Chicago, evidenced by check payable to the Canning Company dated November 29, 1933, which was endorsed by Rogers as president of the Canning Company, and further endorsed by him as tax collector and cashed by him through that office. Rogers received the $12,000 and testified that he used it to reimburse the tax collector’s office for funds taken from it by him to pay bills of the Canning Company and to take up his personal checks which he had substituted for the cash taken from the collector’s office. Petitioners assert that the $12,000 is part of a credit to Rogers on the books of the Canning Company of $17,-582.59, entered December 31, 1933, to offset - advances made to the company by Rogers to pay its bills and should not be included in petitioners’ income. The Commissioner urges that Rogers personally received the $12,000, and that the burden is on petitioners to prove that it was used to pay corporate expenses.
We think the Board did not err as to this item. The finding of the Commissioner is prima facie correct, and petitioners have the burden of proving what part of the amount determined to be a deficiency is not due. Welch v. Helvering, 290 U.S. 111, 54 S.Ct. 8, 78 L.Ed. 212; United States v. Peabody Co., 6 Cir., 104 F.2d 267; Commissioner v. Volunteer State Life Ins. Co., 6 Cir., 110 F.2d 879, decided March 12, 1940. Petitioners have not sustained this burden. The records of the company were loosely kept, in that Rogers instructed the bookkeeper what entries to make. Petitioners kept no personal records. Evidence as to their income consists of sketchy memoranda, and information emanating from the uncertain memory of Charles A. Rogers. Rogers’ testimony on the point is confused and evasive. He made references to memoranda which were not produced, and stated that he did not know where they were. It was Rogers who directed that the journal entry of December 31, 1933, of $17,582.59, be made. Rogers at the time of the hearing was serving sentence for conviction of embezzlement of city funds. The Board found that there was nothing in the record to show that the check for $12,000 has any relation to the credit of $17,582.59 on the books of the Canning Company. The Board’s finding is a determination of a question of fact, and if supported by the record, should be affirmed unless clearly erroneous. Helvering v. National Grocery Co., 304 U.S. 282, 294, 58 S.Ct. 932, 82 L.Ed. 1346; Elmhurst Cemetery Co. of Joliet v. Commissioner, 300 U.S. 37, 40, 57 S.Ct. 324, 81 L.Ed. 491; Helvering v. Rankin, 295 U.S. 123, 131, 55 S.Ct. 732, 79 L.Ed. 1343; Commissioner v. Johnston, 6 Cir., 107 F.2d 883; Gamble v. Commissioner, 6 Cir., 101 F.2d 565.
Petitioners also contend that the Board erred in holding that petitioners were subject to the 50% penalties for the years 1932, 1933, and 1934, under § 293(b) of the Revenue Acts of 1932 and 1934, 47 Stat. 169, and 48 Stat. 680, 26 U.S.C.A.Int.Rev. Code, § 293(b), which provides for a penalty of 50% of a deficiency to be assessed where any part of the deficiency is due to fraud with intent to evade the tax. The facts as found by the Board clearly show gross discrepancies for all the years in question, as follows:
Year
Returned Income
Net Income
1932 $8,913.78 $18,748.58
1933 1,942.11 44,352.26
1934 6,205.98 12,978.98
Fraud cannot be lightly inferred, but must be established by clear and convincing proof. Duffin v. Lucas, 6 Cir., 55 F.2d 786. It is conceivable that taxpayers may make minor errors in their tax returns, or, owing to different or contradictory theories of tax computation, calculate returns which differ greatly in result from the Commissioner’s assessments. Here petitioners do not have that excuse. Discrepancies of 100% and more between the real net income and the reported income for three successive years strongly evidence an intent to defraud the Government. The Board did not err in deciding that 50% penalties should be assessed.
The Board was entitled to consider as a part of the evidence Rogers’ conviction for embezzlement of city funds. Wood v. United States, 16 Pet. 342, 10 L.Ed. 987; Castle v. Bullard, 23 How. 172, 16 L.Ed. 424; Butler v. Watkins, 13 Wall. 456, 20 L.Ed. 629; Malone v. United States, 7 Cir., 94 F.2d 281. It is a fair inference that a man who will embezzle funds in his charge will not hesitate to understate his income with intent to defraud the Government. The fact that Rogers was a convicted embezzler had bearing as affecting his credibility. The Board’s finding is one of fact, and, if supported by clear and convincing evidence, should be affirmed. Such clear and convincing evidence existed here.
Petitioners’ final contention is that they are not jointly and severally liable for the deficiencies and penalties for the years in question, but that each is liable for his or her own individual income tax, and that the assessments should have been allocated by the Commissioner. We think the Board was correct in holding that petitioners are jointly and severally liable.
All the returns were joint returns. The return for 1932 was not voluntarily filed, but was prepared for petitioners in 1935 by a deputy collector and was signed by both petitioners. The return for 1934 was also signed by both. While the 1933 return was signed only by Rogers, it was stated to be a joint return for himself and wife.
Cases relied upon by the petitioners are inapplicable for the reason that in them the source and amount of each spouse’s income was definite and certain and the tax was clearly allocable as to each. In the instant case, the credits to each petitioner appearing on the books of the Canning Company and regarded by the Commissioner as income have no relation to the amount of stock of the company owned by each spouse. Mrs. Rogers owned twice as much stock as her husband, but in 1932 the credits to her account were approximately the same in amount as those of her husband, and in 1933 Rogers was credited with an amount greatly in excess of that of his wife. A proper allocation of the tax is impossible from the information furnished to the Commissioner by petitioners.
The decision 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_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.
REED v. UNITED STATES.
No. 8128.
United States Court of Appeals for the District of Columbia.
Submitted May 11, 1042.
Decided June 1, 1942.
Otho D. Branson, of Washington, D. C., for appellant.
Edward M. Curran, U. S. Atty., and John C. Conliff, Jr., and Charles B. Murray, Asst. U. S. Attys., all of Washington, D. C., for appellee.
Before GRONER, Chief Justice, and ED-GERTON and RUTLEDGE, Associate Justices.
PER CURIAM.
Appellant was indicted, tried and convicted of stealing from the person of one David E. Williams a small sum of money. He was sentenced to the penitentiary for a period of from two to six years.
At the trial defendant produced no witnesses and reserved no exceptions. His trial counsel has filed an affidavit in which he informs us that the case was submitted to the jury on the single question whether the defendant did “snatch from the hand of the complaining witness, American currency in the amount of two dollars”; that as attorney for the defendant he attempted to secure interviews with such witnesses as were available and was unable to find any who would testify in defendant’s behalf. After the appeal, it being represented to us that appellant’s former counsel had withdrawn, we requested the trial court to appoint a member of the bar of this court to represent him on appeal. At the call of the case we were informed by present counsel that from the interviews and inspection of the record the only possible error of which appellant could complain was the failure of trial counsel to subpoena witnesses who appellant contends would have testified on his behalf. Counsel, therefore, took the names of witnesses furnished by appellant and had subpoenas issued for their appearance before the District Attorney on a given date, but on that date only two of eight were found and served, and both asserted they had no knowledge of the offense or the circumstances under which it occurred. Counsel informs us he knows of no ground on which the appeal can be sustained.
In this state of the record, and in view also of the fact that the evidence for the government was not stenographically reported and is not contained in the record, we have no alternative but to affirm the judgment.
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_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.
Michael MAGNONE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Joseph V. MAGNONE and Rose Magnone, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Nos. 1151, 1145, Dockets 90-6006, 90-6008.
United States Court of Appeals, Second Circuit.
Argued April 18, 1990.
Decided April 25, 1990.
Jed Rubenfeld, New York City, Asst. U.S. Atty. for the S.D.N.Y. (Otto G. Ober-maier, U.S. Atty. for the S.D.N.Y., Marla Alhadeff, Asst. U.S. Atty., of counsel), for defendant-appellee.
H.J. Gartlan, Jr., New York City (Finkel-stein Bruckman Wohl Most & Rothman, of counsel), for plaintiff-appellant.
Before TIMBERS, PRATT and MINER, Circuit Judges.
PER CURIAM:
Michael Magnone and Joseph V. and Rose Magnone appeal from a judgment of the United States District Court for the Southern District of New York, Michael B. Mukasey, Judge, dismissing their suits for abatement of interest on tax deficiency assessments. We affirm for the reasons given by Judge Mukasey in his thorough opinion reported at 733 F.Supp. 613. We write only to clarify the circuit law.
In 1987 the Internal Revenue Service (IRS) assessed plaintiffs for tax deficiencies in the tax years 1974-1976. In 1988 plaintiffs paid all taxes due for those years as well as the interest accrued in 1979. They did not pay the interest accrued for the other years. Relying on 26 U.S.C. § 6601(c), they filed for an abatement of the interest charges claiming IRS delay. When the IRS failed to respond, plaintiffs commenced these suits seeking refund of the interest. Judge Mukasey held that jurisdiction was lacking because plaintiffs did not satisfy either the full-payment rule or the prior-claim rule; and that no claim had been stated because under the applicable statute the suits were not authorized for the particular tax years at issue.
First, the full payment rule requires as a prerequisite for federal court jurisdiction over a tax refund suit, that the taxpayer make full payment of the assessment, including penalties and interest. Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), aff'd on rehearing, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). Since plaintiffs had paid accrued interest only for the year 1979, they did not make the required full payment of the interest accrued from the delinquencies up to the time of payment.
Nevertheless, plaintiffs contend they complied with the single-year rule which provides that the jurisdictional prerequisite is satisfied when a taxpayer makes “full payment of a tax liability for any given year.” Green v. United States, 618 F.2d 122, 220 Ct.Cl. 712, 713 (1979). We agree with Judge Mukasey’s interpretation of the rule that a payment of interest “constitute^] full payment only if it includes all interest relating to the year for which the deficiency has been assessed, but not if it is simply one year’s worth of interest on a past deficiency”, as it was here. Thus, under either rule plaintiffs have not met the jurisdictional requirement.
Second, under the prior-claim rule, a taxpayer must bring the claim for refund to the IRS as a prerequisite to jurisdiction for the suit in federal court. 26 U.S.C. § 7422(a). Consequently, in pursuing such a suit, a taxpayer may not raise different grounds than those brought to the IRS. Union Pacific RR Co. v. United States, 389 F.2d 437, 442 (Ct.Cl.1968).
In their IRS claim, plaintiffs relied on 26 U.S.C. § 6601(c) and sought suspension of all interest accrued on each of the three deficiency assessments. Their federal court complaint relied on 26 U.S.C. § 6404(e) and sought abatement only of that interest which had accrued on those deficiencies in the year 1979. As Judge Mukasey described in detail, these claims are entirely different and therefore cannot satisfy the jurisdictional requirement of the prior-claim rule.
Finally, section 6404(e), on which plaintiffs now rely, applies only to “interest accruing with respect to deficiencies or payments for taxable years beginning after December 31, 1978.” Pub.L. No. 99-514, § 1563(b)(1), 100 Stat. 2085, 2762 (1986). We agree with Judge Mukasey’s interpretation that § 6404(e) applies “only to interest accruing on deficiencies for tax years after 1978.” He correctly held that “[h]ere, the challenged interest accrued with respect to deficiencies and payments for the years 1974, 1975 and 1976, which are clearly earlier than December 31, 1978. Consequently, plaintiffs cannot sue for those years”.
Accordingly, the district court’s judgment is affirmed in all respects.
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_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".
CARROLL ELECTRIC CO. v. FREED-EISE-MANN RADIO CORPORATION.
No. 5140.
Court of Appeals of District of Columbia.
Submitted May 7, 1931.
Decided June 1, 1931.
Chas. A. Douglas and Edmund D. Campbell, both of Washington, D. C., for appellant.
Max L. Rosenstein, of Newark, N. J., for appellee.
Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.
MARTIN, Chief Justice.
An appeal from an order quashing service of summons upon a foreign corporation.
The Carroll Electric Company, a District of1 Columbia corporation, plaintiff below, sued the Freed-Eisemann Company, a New York corporation, for damages because of the alleged breach of a contract existing between'them relating to certain dealings in radio equipment.
A writ of summons was issued for the defendant, which was returned by the United States Marshal for the District of Columbia with the following indorsement, to wit, “served copies of the declaration, affidavit, and this summons, on the Defendant Corporation within named by serving Fred McCarthy, Salesman, in charge personally, July 18, 1929.”
Thereupon, by special appearance) the defendant moved to quash this service, alleging in substance that it was a foreign corporation and was not doing or transacting business in the District of Columbia at the date of the alleged service, and did not have or maintain an office or an agent therein, and that McCarthy upon whom service was made was not a “salesman in charge,” nor doing or transacting business for defendant in the District, except for assistance rendered'in soliciting orders for merchandise.
This motion was heard upon affidavits and was sustained. The service was quashed, and the present appeal was taken.
This-subject is governed by section 373, c. 15, tit. 24, of the Code of the District of Columbia 1929, .reading as follows:
“Service on foreign corporations. — In actions against foreign corporations doing business in the District all process may be served on the agent of such corporation or person conducting its business, or, in case he is absent and can not be found, by leaving a copy at the principal place of business in the District, or, if there be no such place of business, by leaving the same at the place of business or residence of such agent in said District, and such service shall be effectual to bring the corporation before the court.
“When a foreign corporation shall transact business in the District without having any place of business or resident agent therein, service upon any officer or agent or employee of such corporation in the District shall be effectual as to suits growing out of contracts entered into or to be performed, in whole or in part, in the District of Columbia or growing out of any tort committed in the said District.” ’
The relations between the two corporations were created by a written contract called a “Distributor’s Franchise” entered into by them in New York City on May 1, 19291, wherein the Freed-Eisemann Radio Corporation is designated as the “Manufacturer” and the Carroll Electric Company as the “Distributor.” The following stipulations, among others, appear in the contract.
“1. The Manufacturer agrees to and does hereby grant to the Distributor a Freed-Eise-mann Distributor- Franchise for the term and subject to the conditions of this Agreement, in the following described territory; District of Columbia, Virginia, Maryland, Part of West Virginia, Part of Delaware.
“2. The Distributor agrees to earry at all times a representative stock of the products of the Manufacturer, and to exert every reasonable effort to sell the products of the Manufacturer at wholesale within said territory, and to secure an adequate number of dealers to sell said products at retail within said territory.
“3. The Distributor agrees to purchase the products of the Manufacturer in accordance with the Manufacturer’s formal acknowledgment of orders at a discount of 50% and 10% from list price, F. O. B. factory at Clifton, New Jersey, payment less 2% to be made on or before the 10th of the following month.
“4. The Distributor agrees to have every new dealer to whom the Distributor sells the Manufacturer’s products, approved by the Manufacturer, and to have said dealer execute in triplicate the Manufacturer’s “Authorized Dealer Contract”, a specimen of which is annexed hereto, and to forward the same in triplicate to the Manufacturer. If approved and executed by the Manufacturer, one copy of said contract shall be kept by it, one copy shall be returned to the Distributor and one copy shall be sent by the Manufacturer to the dealer.”
“10. The Distributor agrees to act as a wholesale Distributor of the Manufacturer within the territory specified in paragraph ‘1’ hereof, and to maintain at the Distributor’s expense an office and show-room within the territory hereby assigned, with an efficient service department and sales force adequately equipped to service and sell at wholesale the Manufacturer’s products.
“11. The Distributor agrees not to sell, advertise, offer or display for sale any radio sets, speakers, parts or tubes other than those furnished by the Manufacturer during the term of this Agreement.”
It appears that the contract between the two corporations was terminated prior to the beginning of this ease, but that a contract identical in form with this was then in exist-tenee between the manufacturer and the Oriole Phonograph Company, a corporation of the District of Columbia, and consequently the termination of the former contract is not important in this particular.
The terms of the contract between thq parties have the effect of creating a limited agency in the distributor, under which- the latter discharged various obligations for the manufacturer in disposing of its products within the specified area. The distributor was not an independent merchant dealing with the manufacturer upon its own initiative, but conducted its business in the District of Columbia in conformity with the stipulations contained in the contract. The activities thus provided for constituted the transaction of business by both parties not only in New York City, where the contract was made, but also in the District of Columbia, within which it was in part carried out. The ease thus falls within the provisions of the second paragraph of section 373 supra, and the service of summons on McCarthy, who was an employee of the manufacturer, was valid under that paragraph. Toledo Computing Scale Co. v. Miller, 38 App. D. C. 237; Hoffman v. Washington-Virginia Railway Co., 44 App. D. C. 418; Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S. 359, 47 S. Ct. 400, 71 L. Ed. 684; Wilson v. Hudson Motor Car Co. (D. C.) 28 F.(2d) 347; La Porte Heinekamp Motor Co. v. Ford Motor Co. (D. C.) 24 F.(2d) 861.
The order of the lower court quashing the service of summons is reversed, with costs, and the cause is remanded for further proceedings not inconsistent herewith.
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_fedlaw
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
Leonard N. BEBCHICK and Leonard S. Goodman, Appellants, v. PUBLIC UTILITIES COMMISSION OF DISTRICT OF COLUMBIA and D. C. Transit System, Inc., Appellees.
No. 15999.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 30, 1960.
Decided Jan. 12, 1961.
Messrs. Leonard N. Bebchick and Leonard S. Goodman, appellants pro se.
Mr. George F. Donnella, Counsel, Public Utilities Commission of the District of Columbia, with whom Messrs. Chester H. Gray, General Counsel, Public Utilities Commission of the District of Columbia, and Andrew G. Conlyn, Counsel, Public Utilities Commission of the District of Columbia, were on the brief, for appellee Public Utilities Commission of the District' of Columbia.
Mr. Owen J. Malone, Washington, D. C., for appellee D. C. Transit System, Inc. Mr. Harvey M. Spear, New York City, also entered án appearance for ap-pellee D. C. Transit System, Inc.
Before Washington, Danaher and Bastian, Circuit Judges.
WASHINGTON, Circuit Judge.
This case involves an appeal from a decision of the Public Utilities Commission of the District of Columbia, relative to rates of bus and streetcar fares charged by appellee D. C. Transit System, Inc. Section 43-705 of the D.C.Code provides that “Any * * * person * * * affected by any final order or decision of the Commission, other than an order fixing or determining the value of the property of a public utility in a proceeding solely for that purpose, may” appeal to the District Court and from that court to this. See Pollak v. Public Utilities Commission, 1951, 89 U.S.App.D.C. 94, 191 F.2d 450. Appellants’ petition of appeal, filed pursuant to this section, was dismissed by the District Court on the ground “that the record certified to the Court contains no evidence to support the plaintiffs’ allegation that they are riders of Transit vehicles or are persons affected by the Order of the Commission appealed from [and] that, accordingly, within the purview of the statute governing review of orders of the Commission, the plaintiffs are without standing to bring this appeal. * * * ” The present appeal followed.
Appellants contend that the record certified to the court demonstrates, at a minimum, that appellant Goodman is a “transit rider,” i. e., a user of Transit System vehicles; that from an affidavit properly before the court, although not a part of the certified record, it should have concluded that appellant Bebchick is also a “transit rider”; and that as such, both are “persons * * * affected” within the meaning of the statute.
Appellant Goodman filed a petition to intervene in the proceedings before the Commission in which he made the sworn statement that he is a regular commuter on Transit • System vehicles. In its order granting intervention the Commission expressly relied upon this allegation. We believe that upon this evidence, which was a part of the record certified by the Commission, the District Court should have found that appellant Goodman is a transit rider.
Although appellant Bebchick did not file a petition to intervene, he did join in the petition for reconsideration and alleged therein that he is a transit rider. Moreover, appellant Bebchick subsequently filed with the District Court an affidavit in which he stated that he is “an occasional and casual customer and rider of the buses and streetcars of D. C. Transit System, Inc.” We are of the opinion that this affidavit, although dehors the certified record, was proper for consideration below, the question being one of standing to bring the appeal, and that on the basis of all the evidence properly before it the trial court should have found that appellant Bebchick is also a transit rider.
On the facts here, we believe that appellants, as transit riders, qualify as persons entitled to appeal. In United States v. Public Utilities Commission, 1945, 80 U.S.App.D.C. 227, 231, 151 F.2d 609, 613, we held that the language of Section 43-705 of the D.C.Code and its companion sections-manifests “an intention that consumers [of electric power] shall have a right to challenge the Commission’s actions.” This right accrues with equal force to users of transit facilities. Poliak v. Public Utilities Commission, supra. The order appealed from raises the cash fare for a single trip from 20 cents to 25 cents, but does not increase the token fare of 5 for $1.00, or 20 cents each. Appellees argue that transit riders are not affected by the change in cash fare sinee they can continue to travel at the old rates if they use tokens. The vice of this argument is that it proves too much, since presumably it would bar appeal from an order raising cash fares to 40 cents or 50 cents or even a dollar, so long as token fares were not increased. Manifestly appellees expect the new fare schedule to affect Transit’s revenues in a favorable and meaningful way, or they would not have provided for it. It must therefore affect transit riders, from whose pockets the additional revenues are expected to come.
We hold that the complaint ought not have been dismissed for lack of standing, and order the ease remanded to the District Court for further proceedings.
Reversed and remanded.
. Reversed on other grounds, 1952, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068.
. See Seatrain Lines, Inc. v. United States, D.C.Del.1957, 152 F.Supp. 619, 622-623. This point is conceded by ap-pellee Transit System, although not by appellee Commission.
. Single tokens, however, are not offered: a lot of 5 is the smallest unit sold.
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:
|
sc_decisiontype
|
E
|
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.
ZANT, WARDEN v. STEPHENS
No. 81-89.
Argued February 24, 1982
Decided May 3, 1982
Daryl A. Robinson, Assistant Attorney General of Georgia, argued the cause for petitioner. With him on the brief were Michael J. Bowers, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, and Marion 0. Gordon and John C. Walden, Senior Assistant Attorneys General.
John Charles Boger argued the cause for respondent. With him on the brief were James C. Bonner, Jr., Jack Greenberg, James M. Nabrit III, Joel Berger, Deborah Fins, and Anthony G. Amsterdam.
A brief for the State of Alabama et al. as amici curiae urging reversal was filed by Charles A. Graddick, Attorney General of Alabama, George Deukmejian, Attorney General of California, Jim Smith, Attorney General of Florida, William J. Guste, Jr., Attorney General of Louisiana, William A. Attain, Attorney General of Mississippi, John D. Ashcroft, Attorney General of Missouri, and John M. Morris III, Assistant Attorney General, Michael T. Greely, Attorney General of Montana, Paul L. Douglas, Attorney General of Nebraska, Richard H. Bryan, Attorney General of Nevada, Jeff Bingaman, Attorney General of New Mexico, Rufus L. Edmisten, Attorney General of North Carolina, Daniel R. McLeod, Attorney General of South Carolina, and David L. Wilkinson, Attorney General of Utah.
Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calió filed a brief for the Washington Legal Foundation as amicus curiae.
Per Curiam.
The respondent was convicted of murder in a Georgia Superior Court. His sentencing jury found the following statutory aggravating circumstances:
“(1) that the offense of murder was committed by a person with a prior record of conviction of a capital felony, Code Ann. §27-2534.1(b)(1); (2) that the murder was committed by a person who has a substantial history of serious assaultive criminal convictions, Code Ann. §27-2534.1(b)(1), supra; and, (3) that the offense of murder was committed by a person who had escaped from the lawful custody of a peace officer or a place of lawful confinement, Code Ann. §27-2534.1(b)(9).” Stephens v. Hopper, 241 Ga. 596, 597-598, 247 S. E. 2d 92, 94, cert. denied, 439 U. S. 991 (1978).
The jury imposed the death penalty. On direct appeal, the Georgia Supreme Court affirmed. Stephens v. State, 237 Ga. 259, 227 S. E. 2d 261, cert. denied, 429 U. S. 986 (1976). On the authority of Arnold v. State, 236 Ga. 534, 224 S. E. 2d 386 (1976), it set aside the second statutory aggravating circumstance found by the jury. It upheld the death sentence, however, on the ground that in Arnold “that was the sole aggravating circumstance found by the jury,” whereas in the case under review “the evidence supports the jury’s findings of the other statutory aggravating circumstances, and consequently the sentence is not impaired.” 237 Ga., at 261-262, 227 S. E. 2d, at 263.
After exhausting his state postconviction remedies, Stephens v. Hopper, supra, the respondent applied for a writ of habeas corpus in Federal District Court. Relief was denied by that court, but the United States Court of Appeals for the Fifth Circuit “reverse[d] the district court’s denial of habeas corpus relief insofar as it le[ft] standing the [respondent’s] death sentence, and . . . remanded for further proceedings.” 631 F. 2d 397, 407 (1980), modified, 648 F. 2d 446 (1981). We granted the petition for certiorari. 454 U. S. 814.
In Gregg v. Georgia, 428 U. S. 153 (1976), we upheld the Georgia death penalty statute because the standards and procedures set forth therein promised to alleviate to a significant degree the concern of Furman v. Georgia, 408 U. S. 238 (1972), that the death penalty not be imposed capriciously or in a freakish manner. We recognized that the constitutionality of Georgia death sentences ultimately would depend on the Georgia Supreme Court’s construing the statute and reviewing capital sentences consistently with this concern. See 428 U. S., at 198, 201-206 (opinion of Stewart, Powell, and Stevens, JJ.); id., at 211-212, 222-224 (White, J., concurring in judgment). Our review of the statute did not lead us to examine all of its nuances. It was only after the state law relating to capital sentencing was clarified in concrete cases that we confronted and addressed more specific constitutional challenges in Coker v. Georgia, 433 U. S. 584 (1977), Presnell v. Georgia, 439 U. S. 14 (1978), Green v. Georgia, 442 U. S. 95 (1979), and Godfrey v. Georgia, 446 U. S. 420 (1980).
Today, we are asked to decide whether a reviewing court constitutionally may sustain a death sentence as long as at least one of a plurality of statutory aggravating circumstances found by the jury is valid and supported by the evidence. The Georgia Supreme Court consistently has asserted that authority. Its construction of state law is clear: “Where two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death based thereon.” Gates v. State, 244 Ga. 587, 599, 261 S. E. 2d 349, 358 (1979), cert. denied, 445 U. S. 938 (1980).
Despite the clarity of the state rule we are asked to review, there is considerable uncertainty about the state-law premises of that rule. The Georgia Supreme Court has never explained the rationale for its position. It may be that implicit in the rule is a determination that multiple findings of statutory aggravating circumstances are superfluous, or a determination that the reviewing court may assume the role of the jury when the sentencing jury recommended the death penalty under legally erroneous instructions. In this Court, the Georgia Attorney General offered as his understanding the following construction of state law: The jury must first find whether one or more statutory aggravating circumstances have been established beyond a reasonable doubt. The existence of one or more aggravating circumstances is a threshold finding that authorizes the jury to consider imposing the death penalty; it serves as a bridge that takes the jury from the general class of all murders to the narrower class of offenses the state legislature has determined warrant the death penalty. After making the finding that the death penalty is a possible punishment, the jury then makes a separate finding whether the death penalty should be imposed. It bases this finding “not upon the statutory aggravating circumstances but upon all the evidence before the jury in aggravation and mitigation of punishment which ha[s] been introduced at both phases of the trial.” Brief for Petitioner 13.
In view of the foregoing uncertainty, it would be premature to decide whether such determinations, or any of the others we might conceive as a basis for the Georgia Supreme Court’s position, might undermine the confidence we expressed in Gregg v. Georgia, 428 U. S. 153 (1976), that the Georgia capital-sentencing system, as we understood it then, would avoid the arbitrary and capricious imposition of the death penalty and would otherwise pass constitutional muster. Suffice it to say that the state-law premises of the Georgia Supreme Court’s conclusion of state law are relevant to the constitutional issue at hand.
The Georgia Supreme Court under certain circumstances will decide questions of state law upon certification from this Court. See Ga. Code §24-4536 (Supp. 1980). We invoke that statute to certify the following question: What are the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of one of the statutory aggravating circumstances found by the jury?
The Clerk of this Court is directed to transmit this certificate, signed by The Chief Justice and under the official seal of the Court, as well as the briefs and record filed with the Court, to the Supreme Court of Georgia, and simultaneously to transmit copies of the certificate to the attorneys for the respective parties.
It is so ordered.
The trial judge instructed the sentencing jury as follows:
“Gentlemen of the Jury, the defendant in this case has been found guilty at your hands of the offense of Murder, and it is your duty to make certain determinations with respect to the penalty to be imposed as punishment for that offense. Now in arriving at your determinations in this regard you are authorized to consider all of the evidence received in court throughout the trial before you. You are further authorized to consider all facts and circumstances presented in extinuation [sic], mitigation and aggravation of punishment as well as such arguments as have been presented for the State and for the Defense. Under the law of this State every person guilty of Murder shall be punished by death or by imprisonment for life, the sentence to be fixed by the jury trying the case. In all cases of Murder for which the death penalty may be authorized the jury shall consider any mitigating circumstances or aggravating circumstances authorized by law. You may consider any of the following statutory aggravating circumstances which you find are supported by the evidence. One, the offense of Murder was committed by a person with a prior record of conviction for a Capital felony, or the offense of Murder was committed by a person who has a substantial history of serious assaultive criminal convictions. Two, the offense of Murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim. Three, the offense of Murder was committed by a person who has escaped from the lawful custody of a peace officer or place of lawful confinement. These possible statutory circumstances are stated in writing and will be out with you during your deliberations on the sentencing phase of this case. They are in writing here, and I shall send this out with you. If the jury verdict on sentencing fixes punishment at death by electrocution you shall designate in writing, signed by the foreman, the aggravating circumstances or circumstance which you found to have been proven beyond a reasonable doubt. Unless one or more of these statutory aggravating circumstances are proven beyond a reasonable doubt you will not be authorized to fix punishment at death. If you fix punishment at death by electrocution you would recite in the exact words which I have given you the one or more circumstances you found to be proven beyond a reasonable doubt. You would so state in your verdict, and after reciting this you would state, We fix punishment at death. On the other hand, if you recommend mercy for the defendant this will result in imprisonment for life of the defendant. In such case it would not be necessary for you to recite any mitigating or aggravating circumstances as you may find, and you would simply state in your verdict, We fix punishment at life in prison. Now, whatever your verdict may be with respect to the responsibility you have regarding sentencing please write these out, Mr. Foreman, immediately below the previous verdict you have rendered. Be sure that it is dated and that it bears your signature as foreman. Once again when you have arrived at your verdict on the sentencing phase of the case let us know. We will then receive the verdict from you and have it published here in open court. Please retire now and consider the sentence in this case.” App. 18-19.
See Stevens v. State, 247 Ga. 698, 709, 278 S. E. 2d 398, 407 (1981); Green v. State, 246 Ga. 598, 606, 272 S. E. 2d 475, 485 (1980), cert. denied, 450 U. S. 936 (1981); Hamilton v. State, 246 Ga. 264, n. 1, 271 S. E. 2d 173, 174, n. 1 (1980), cert. denied, 449 U. S. 1103 (1981); Brooks v. State, 246 Ga. 262, 263, 271 S. E. 2d 172 (1980), cert. denied, 451 U. S. 921 (1981); Collins v. State, 246 Ga. 261, 262, 271 S. E. 2d 352, 354 (1980), cert. denied, 449 U. S. 1103 (1981); Dampier v. State, 245 Ga. 882, 883, n. 1, 268 S. E. 2d 349, 350, n. 1, cert. denied, 449 U. S. 938 (1980); Burger v. State, 245 Ga. 458, 461-462, 265 S. E. 2d 796, 799-800, cert. denied, 446 U. S. 988 (1980); Gates v. State, 244 Ga. 587, 599, 261 S. E. 2d 349, 358 (1979), cert. denied, 445 U. S. 938 (1980); Stephens v. State, 237 Ga. 259, 261-262, 227 S. E. 2d 261, 263, cert. denied, 429 U. S. 986 (1976).
Last Term, Members of this Court expressed different assumptions about the meaning — and the constitutionality — of the Georgia Supreme Court’s position. In Drake v. Zant, 449 U. S. 999 (1980), the Court declined to grant certiorari and vacate the judgments in two Georgia cases in which the death sentences — premised in part on the (b)(7) aggravating circumstance — were imposed prior to our decision in Godfrey v. Georgia, 446 U. S. 420 (1980). Justice Stevens, concurring in the disposition, expressed the opinion that the Georgia Supreme Court’s position was so clear that there was no need to remand the cases for reconsideration in light of Godfrey. 449 U. S., at 1000. Dissenting from the denial of certiorari, Justice Stewart stated that if one aggravating circumstance found by the jury “could not constitutionally justify the death sentence, Georgia law would prohibit a further finding that the error was harmless simply because of the existence of the other aggravating circumstance.” Id., at 1001. He believed that the Georgia Supreme Court’s position on the issue was inconsistent with the Georgia capital punishment scheme because “only the trial judge or jury can know and determine what to do when upon appellate review it has been concluded that a particular aggravating circumstance should not have been considered in sentencing the defendant to death.” Ibid. Justice White, also dissenting, would have remanded for reconsideration in light of Godfrey, a disposition that “would allow the Georgia Supreme Court in the first instance to determine whether the death penalty should be sustained without regard to the validity of the Godfrey circumstance.” 449 U. S., at 1002. He did “not understand the Georgia cases ... to hold either that the Georgia Supreme Court is without power to set aside a death penalty if it sustains only one of the aggravating circumstances found by the jury or that, although the court has that power, it invariably will not disturb the death penalty in such situations.” Ibid.
“When it shall appear to the Supreme Court of the United States . . . that there are involved in any proceeding before it questions or propositions of the laws of this State which are determinative of said cause and there are no clear controlling precedents in the appellate court decisions of this State, such Federal appellate court may certify such questions or propositions of the laws of Georgia to this court for instructions concerning such questions or propositions.”
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
|
C
|
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".
Joe R. STEELE, Appellant, v. UNITED STATES of America, Appellee.
No. 16234.
United States Court of Appeals Fifth Circuit.
April 26, 1957.
Rehearing Denied June 11, 1957.
Ralph G. Langley, Ben F. Foster, and Foster, Lewis, Langley & Goode, San Antonio, Tex., for appellant.
Frederick B. Ugast, Atty., Dept, of Justice, Washington, D. C., Charles K. Rice, Asst. Atty. Gen., John E. Banks, Asst. U. S. Atty., San Antonio, Tex., for appellee.
Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.
HUTCHESON, Chief Judge.
Tried on an indictment charging income tax evasion, in Count One for the year 1947 and in Count Three for the year 1948, defendant was acquitted on Count Three and convicted and sentenced on Count One to two years imprisonment and a fine of $7500.
As on the previous trial, the conviction in which was reversed, Steele v. United States, 5 Cir., 222 F.2d 628, while no specific item of unreported income was shown by direct evidence, the government undertook to show understatements of income by the net worth and expenditures method.
Appealing from the verdict and judgment, appellant attacks the trial as unfair and affected with procedural error in two respects. One of these is permitting the government, on cross exam-243 F.2d — 45% ination of the defendant after he had taken the stand in his own behalf and over defendant’s objection, to elicit the answer “Yes” to the question:
“Mr. Steele, will you just give me a yes or no answer. The question will be asked in such a manner that it can be answered yes or no. Isn’t it a fact that you did not take the stand in your behalf at a previous trial of this case?”
The other is permitting the government, over defendant’s objection that the offense was too remote in time and that it was unrelated to the offenses for which he was on trial, income tax evasion, to interrogate the defendant on cross examination regarding a prior felony conviction for gaming.
In addition to these attacks upon the trial procedure, appellant makes the fundamental attack upon the verdict and judgment, that the evidence was insufficient to sustain it and that a verdict of acquittal should have been and should now be directed on his motion for acquittal.
Confidently urging these claims upon us, singly and together, in a well written and argued brief, appellant insists that they are all well taken and should be sustained, while the United States, resisting the claims with equal confidence and vigor, insists that no reversible error attended the trial and that the judgment must be affirmed. For the reasons hereafter stated, we agree that this is so.
Upon its first point, appellant, insisting that on principle the answer sought and elicited was without testimonial relevancy and its admission was error, urges upon us that it was highly prejudicial error both because the very nature and frame of the question cast an aspersion upon him for not having taken the stand, thereby violating his constitutional right to refrain from testifying on the former trial, and because the defendant had taken the stand in reliance upon the prior ruling of the court that the former trial should not be referred to. Arguing that the Supreme Court in the Johnson case* Johnson v. U. S., 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704, has foreshadowed its departure from the Raffel case, Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054, and that the recent grant of certiorari in the case of United States v. Grunewald, 2 Cir., 233 F.2d 556 has confirmed this departure, the appellant asks us to hold that there was error in asking the question, or, if we will not do so, to withhold our decision until the Supreme Court has acted in the Grünewald ease.
We are of the clear opinion that neither of these requests should be granted. This is so both because it is clear that, under the decisions as they now stand, there was no error in admitting the evidence and because the facts and issues in the Grünewald case are different from those here, and no sufficient showing is made that a reversal of the decision in Grünewald would require a reversal here. Indeed, when the point now under discussion is considered in the light of the whole record, it seems clear that, if it was error to admit the evidence, the error was the technical one of asking a question, the answer to which was immaterial and irrelevant, Cf. Raffel v. United States, 271 U.S. 494, at page 497, 46 S.Ct. 566, 568 which, under Rule 52(a) was “harmless error”.
While the government in its brief does argue that the question was relevant because, as stated in the Raffel case, if the cross examination had revealed “the real reason for the defendant’s failure to contradict the government’s testimony on the first trial was a lack of faith in the truth or probability of his own story, his answer would have a bearing on his credibility and on the truth of his own testimony in chief”, here the question was strictly limited to an answer “Yes” or “No”. No effort was made to follow the answer up, and the district judge by his instruction excluded the whole matter of the former trial from the jury’s consideration.
Appellant’s argument that the matter is made more serious by what he calls the ground rule laid down by the judge at the beginning of the trial, that no reference should be made to the former trial, will not, we think, stand up because as the court stated, and it was in effect admitted, at that time it was not supposed that the defendant would take the stand.
Finally, the verdict of the jury, convicting the defendant of the smaller amount of evasion charged in the 1947 tax year and acquitting him of the larger amount in the 1948 tax year, shows plainly that the defendant took no prejudice from the ruling but, on the contrary, obtained a benefit from the defendant’s answer, that he was convicted and sentenced to four years, and the judgment was reversed.
On its second point, appellant stands no better. Indeed, not as well. Admitting that it is the general rule that when a defendant takes the witness stand he may be impeached as any other witness, and that there are many cases holding that the admission of evidence of convictions of a felony or of a misdemeanor involving moral turpitude is not error, he yet urges upon us that, in admitting this evidence under the facts and circumstances, the district court abused its discretion and the admission was prejudicial error.
We cannot at all agree. We think that but for the matter of remoteness in time there could be no basis for the claim and that, in admitting the evidence under the circumstances of this case, the court was well within its discretion. If, however, we should be mistaken in this, it is quite plain that no prejudicial error occurred. Defendant was allowed to and did show that he received a pardon. Besides, since the major part of the evidence in the case dealt with gambling and the profits derived therefrom, the proof of the conviction for gaming could not be said to have in any way introduced a new element into the case which reflected discreditably upon appellant. If he was prejudiced by the fact of his gaming, the prejudice was established by the necessarily relevant evidence as to the source of his income, and if that did not prejudice him, the mere fact that he had been been convicted in connection with his business and received a pardon certainly could not be said to do so. The whole design and purpose of Criminal Rule 52(a) embodying and carrying forward the long continued provision for harmless error embodied in the statutes, was, while protecting a defendant from substantial and harmful error, to prevent wholesale reversals for immaterial and harmless error.
As the Supreme Court said in the Lutwak case, Lutwak v. U. S., 344 U.S. 604, at page 619, 73 S.Ct. 481, 490, 97 L.Ed. 593; “A defendant is entitled to a fair trial but not a perfect one.” See also Elder v. United States, 5 Cir., 213 F.2d 876.
Devoting a large portion of its brief to the presentation of his third and final point, that a verdict of acquittal should have been directed, appellant, by an argument, falling short we think of demonstrating as a matter of law that no case for a jury verdict was made out, so invests with plausibility the claim made to the trier of facts, that on the evidence as a whole he ought not to have been convicted on either count, as to furnish a common sense explanation for the verdict which, convicting him on one count, acquitted him on the other. In short, while the argument, viewed as a jury argument, skillfully and effectively, from defendant’s standpoint, points to and attacks the claimed factual weaknesses in the government’s evidence as to the opening net worth as of January 1, 1947, it fails to demonstrate, as it claims to do, that the evidence made mandatory the direction of a verdict on the first count. When the appellant was here before, this court, on full consideration, determined adversely his contention that a verdict of acquittal should have been directed because (a) the proof was insufficient to establish an accurate opening net worth as of January 1,1947, and (b) there was no showing of willfulness.
The evidence adduced by the government in support of its opening net worth on this trial was substantially the same as that it introduced on this point on the first trial, and the testimony of the defendant on this trial did not, as matter of law, effect any change.
As to the claim that the government failed to establish, as a matter of law, a reasonably accurate closing net worth, no such claim was apparently made on the first appeal, and the argument now made presents nothing more than an argument on the facts which the jury has rejected.
Apparently the defendant is of the opinion that the cases hold that in this kind of case the government’s proof must attain the accuracy of a scientific demonstration, and that any failure to attain to this standard or any discrepancies in the proof will be fatal to the government’s case.
We have been pointed to, we have found, no decision so holding.
Here, as in his argument in respect to the opening net worth statement, appellant makes nothing more than a jury argument against the sufficiency of the proof. He does not, he cannot, show that if the government’s evidence is believed, a case for the jury is not made out. In short, appellant, drawing on the cautionary admonition in the cases as to the duty of the courts to see that a defendant is not convicted on insufficient evidence, that when his extra judicial statements are relied on, they must be corroborated, and confusing what the court said in the Calderon case with respect to the proof showing an increase in net worth “over the prosecution years”, the appellant is seeking to make contentions and arguments, which are all right in théir place as arguments to the trier of facts, serve as arguments in support of a claim that, as matter of law, there are no facts to argue to a trier.
We find no merit in appellant’s contentions and no support for his arguments in the trilogy of cases, Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150; Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192; and U. S. v. Calderon, 348 U.S. 160, 161, 75 S.Ct. 186, 190, 99 L.Ed. 202, he cites.
It is true that in each of these cases the court did point out the perils to the defendant inherent in the net worth method of proof and did enjoin upon the courts special precautions to see to it that the defendant was not thrown into the position by this kind of prosecution of having to prove himself innocent of the charges, and it did discuss and determine the law as to corroboration of extra judicial admissions such as made here with regard to opening and closing net worth. The result, however, of these discussions and determinations was to make it clear that, while corroboration was usually necessary, “admissions given under special circumstances, providing grounds for a strong inference of reliability, may not have to be corroborated.”, and that “It is sufficient if the corroboration merely fortifies the truth of the conviction without independently establishing the crime charged”. In Calderon’s case where, unlike here, the defendant was convicted for evasion on each of the four counts charged, the court pointed out that corroborating evidence could be sought in the proof of both parties where the defendant introduced evidence in his own behalf after his motion for acquittal has been overruled, and that, “while the evidence as a whole must show a deficiency for each of the prosecution years, the corroborative evidence suffices if it shows a substantial deficiency for the over-all prosecution period.” (Emphasis supplied.)
Instead then of holding in effect, as the appellant claims it does, that if the government approaches a net worth case on “a prosecution year theory”, if its proof fails in any respect, it must be held to have failed to make out a case for any of “the prosecution years”, the court really held that while in order to recover in any year the government must show a deficiency for that year, “the corroborating evidence suffices if it shows a substantial deficiency for the over all prosecution period.”
No reversible error appearing, the judgment is affirmed.
. Including the testimony of the defendant on redirect, that it was upon the advice of his counsel that he did not take the stand, and his surrebuttal testimony, that he was convicted on the trial and given a sentence, and that his conviction was set aside on appeal, and the instruction of the district judge:
“The evidence in this case has developed the fact that the case has been ■tried before. In that connection you are instructed that you will not consider for any purpose, nor discuss that fact in determining the guilt or innocence of the defendant. You will consider only the evidence adduced at this trial in determining the guilt or innocence of the defendant and not speculate as to the evidence introduced in the former trial.” (Record pp. 1A-15)
. “52(a) Harmless Error. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.” Rules of Criminal Procedure, 18 U.S.C.A. pp. 570-572, and Ann.Pocket Part p. 236-238 Inch
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_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
HYNES, Regional Director, Fish and Wildlife Service, Department of the Interior, v. GRIMES PACKING CO. et al.
No. 11585.
Circuit Court of Appeals, Ninth Circuit.
Nov. 21, 1947.
As Amended Jan. 12, 1948.
Writ of Certiorari Granted April 5, 1948.
A. Devitt Vanech, Asst. Atty. Gen., Harry O. Arend, U. S. Atty., and Willliam E. Berrett, Asst. U. S. Atty. both of Fairbanks, Alaska, and Roger P. Marquis and S. Billingsley Hill, Attys., Dept, of Justice, both of Washington, D. C., for appellant.
Edward F. Medley, Frank L. Mechem, and W. C. Arnold, all of Seattle, Wash. (Covington, Burling, Rublee, Acheson & Shorb, of Washington, D. C., of counsel), for appellees.
Before DENMAN, HEALY, and BONE, Circuit Judges.
DENMAN, Circuit Judge.
Appellant Hynes appeals from a permanent injunction enjoining him “from enforcing or attempting to enforce the restrictive provisions of Section 208.23 (r) of the 1946 Alaska Fisheries General Regulations and from seizing any boats, seines, nets, or other gear and appliance used or employed in fishing by the plaintiffs in the waters in and adjacent to the Karluk Indian Reservation situated on Kodiak Island, Alaska, three thousand feet seaward from the shore at mean low tide or any fish taken therewith, or from arresting any of plaintiffs’ fishermen who carry on fishing operations in said waters.”
The district court found that appellant, as Regional Director of the Fish and Wildlife Service of the Department of the Interior, had threatened to seize the appellees’ fishing bo’ats and catches of salmon and to arrest their fishermen, some six hundred in number, in the manner prohibited by the injunction, purporting to act under the summary procedures of Section 6 of the White Act of June 6, 1924, 48 U.S.C.A. § 226.
The court held against appellant’s contention that these ocean waters below lofiv tide had been included in a reservation for the Indians of Karluk village located on Shelikof Strait, giving the Indians a monopoly of fishing there. It further held that an Alaska Fisheries General Regulation 208.23 (r), designated to give fishing rights to the Karluk Indians in such purportedly reserved ocean waters and denying to all others the right to fish there unless licensed by the Indians to participate in their monopoly, violated Section 1 of the White Act, considered infra, providing that if any persons are allowed to fish in Alaskan waters none shall be excluded.
Regulation 208.23 (r) of the Secretary of the Interior purports to create a monopoly of fishing in the Karluk Indians in the above described ocean waters by providing:
“Sec. 208.23 Waters closed to salmon fishing. All commercial fishing for salmon is prohibited as follows: * * *
“(r) All waters within 3,000 feet of the shores of Karluk Reservation (Public Land Order No. 128, May 22, 1943), beginning at a point on the east shore of Shelikof Strait, on Kodiak Island, latitude 57° 32' 30" N., thence northeasterly along said shore to a point 57° 39' 40".
“The foregoing prohibition shall not apply to fishing by natives in possession of said reservation, nor to fishing by other persons under authority granted by said natives (49 Stat. 1250). Such authority shall be granted only by or pursuant to ordinance of the Native Village of Karluk, approved by the Secretary of the Interior, or his duly authorized representative.”
It is thus apparent that regulation 208.23 (r) does not contemplate that the ocean waters there involved are ordinary waters open to fishing subject to usual regulations for fish, preservation, but that the regulation is based upon the assumption that there is a reservation of these waters in which there is a monopoly of fishing in the Karluk Indians. Further that it is a monopoly in which these Indians may sell licenses to others to participate. Indeed, the appellant claims that the appellee fishing companies and all others have no cause to complain because they could buy such licenses from the Indians to participate in their monopoly and that the appellees have obtained such licenses in the past, and hence have been able to seine as many fish as they would if the regulation had not existed. The regulation has no other purpose than to create the Indians’ monopoly on the supposition that an Indian reservation in fact has been created and that the Secretary has a right to permit the Indians to fish there and deny the right to all other fishermen not so licensed.
The primary question for our determination is whether the Secretary of the Interior was authorized by Congress to create an Indian reservation in these waters below low tide for, if they are waters not so reserved, monopoly fishing rights therein are prohibited 'by Section 1 of the White Act, 48 U.S. C.A. § 221 et seq. Since we decide that Congress has not given' such authorization, to the Secretary, we are not concerned with the question whether — even if so reserved— regulation 208.23 (r) violates the White Act in permitting the licensed fishermen other than Indians to fish there and refusing the right to the unlicensed.
Appellant contends that Congress created the power in the Secretary to reserve to the Karluk Indians such below low tide ocean waters by Section 2 of the amendment of 1936, 48 U.S.C.A. § 358a,' of the Wheeler-Howard Act of 1934, 48 Stat. 984, 25 U.S.C. A. § 461 et seq. Section 2 describes what of the several classes of lands of the United States may be so covered in Indian reserva^tions.
“Sec. 2. That the Secretary of the Interior is hereby authorized to designate as an Indian reservation [a] any area of land, which has been reserved for the use and occupancy of Indians or Eskimos by section 8 of the Act of May 17, 1884 (23 Stat. 26), or [b] by section 14 or section 15 of the Act of March 3, 1891 (26 Stat. 1101), or [c] which has been heretofore reserved under any executive order and placed under the jurisdiction of the Department of the Interior or any bureau thereof, together with [d] additional public lands adjacent thereto, within the Territory of Alaska, or any other public lands which are actually occupied by Indians or Eskimos within said Territory: Provided, That the designation by the Secretary of the Interior of any such area of land as a reservation shall be effective only upon its approval by the vote, by secret ballot, of a majority of the Indian or Eskimo residents thereof who vote at a special election duly called by the Secretary of the Interior upon thirty days’ notice: * * (Emphasis supplied.)
Concerning the phrase “any area of land which has been reserved,” it is not contended that these Indians had had reserved to them any of the below tide waters of Shelikof Strait by virtue of the Act of May 17, 1884, 48 U.S.C.A. § 356, or of the Act of March 3, 1891, 48 U.S.C.A. § 358, or by any prior reservation placed under the jurisdiction of the Department of the Interior.
Whatever power the Secretary of the Interior had to reserve for them any lands is created by that portion of Section 2 which reads “The Secretary of the Interior is hereby authorized to designate * * * additional public lands adjacent thereto, within the Territory of Alaska, or any other public lands which are actually occupied by Indians or Eskimos within said Territory.” In this respect the 1936 Act differs from the above Acts of 1884 and 1891 which use the general phrase “lands” without the qualifying adjective “public.”
I. Congress in the 1936 amendment to the Wheelcr-Howard Act, authorizing the Secretary of the Interior to reserve “public lands’’ for Alaska Indian tribes, did not empower him to reserve ocean lands below low water mark. It did not intend to create in the Indians communal monopolies in such salmon fishing waters about the long established packing plants from which would be excluded the thousands of white fishermen employed in producing for the world, but principally the United States, its largest supply of canned fish food.
The evidence shows that a large part of the 30,000 Alaska Indians live in over eighty groups, most of them at the mouths of streams into which run the salmon seeking to spawn. Prior to the coming of the canning and packing plants, the Indians smoked the salmon for winter use, that fish being their principal article of diet By a process of survival these Indian villages are at the rivers having the largest salmon runs.
Over a half century ago American enterprises began to supply the world, principally the United States, with these salmon processed into cans. These enterprises grew until their investment of upwards.of seventy million dollars added to the world’s food supply in the three years preceding the 1936 statute, under which the Indian fishing monopolies here in question were purported to be created, an annual average of 5,947,518 cases of 48 pounds each — that is 285,480,899 pounds valued at $30,918-700. In 1935 9,205 fishermen in 845 vesseis and 3,989 boats and 11,861 processing employees were engaged, in this food production.
Congress in 1924 in the so-called White Act, hereafter considered, had recognized the character of this addition of this food to the world’s commerce by placing the fishing regulations under the Secretary of Commerce. It remained there until 1939, three years after the 1936 Act here to be construed, when,, under the executive reorganization act of that year, 53 Stat. 561, it was transferred to the Secretary of the Interior. Such a shift in the administrator does not change the Congressional recognition of the addition to commerce of this food supply.
For some time 'before 1924 the Department of Commerce had created a series of monopolies of exclusive fishing in certain of these Alaskan food processors. The Indians through their counsel joined with other processors excluded by the monopolies to obtain relief from Congress and, in response to their appeals, the Congress in 1924 enacted the White Act. That Act ended the monopoly system by providing that every fishing regulation made by the Secretary of Commerce “shall be of general application within the particular area to which it applies, and- that no exclusive or several right of fishery shall be granted therein nor shall any citizen of the United States be denied the right to take, prepare, cure, or preserve fish or shellfish in any area of the waters of Alaska where fishing is permitted by the Secretary of Commerce.” (Emphasis supplied.) 48 U.S.C. A. § 222.
Whether prior to 1924 citizenship had been conferred on the Alaska Indians and Eskimo who came into the United States not by conquest but by acquisition under the Russian treaty, they clearly were recognized as citizens by the Act of June 2, 1924, 43 Stat. 253, four days before the White Act became law. As such citizens they obtained the freedom from a monopoly exclusion from the fishing waters which they sought in their advocacy of the White Act. This was made apparent by the report on that Act of the House Committee (H.Rep. No. 357, 68th Cong., lst.Sess. p. 2):
“At the present time it is the policy of the department as one means of control of fishing to grant a limited number of fishing permits within any designated area and to exclude.all others from fishing rights therein. Your committee does not question the purpose of the department in this regard, but it has reached the unanimous and positive opinion that this practice of granting exclusive fishing privileges should cease and in this section it is declared that all regulations authorized to be made shall be of general application and that no exclusive or several right of fisheries shall be granted, nor shall any citizen be denied the right to take fish in waters where fishing is permitted. This declaration of policy and prohibition of law was earnestly urged upon the committee by the Delegate from the Territory, Mr. Sutherland, and has the general support of the people of the Territory.”
Senator White, author of the bill, stated (65 Cong.Rec. 5974):
“The Committee inserted this provision in order to do away with that exclusive right of fishing and to insure to every citizen of the United States equality of right and equality of opportunity.”
The contention of the appellant is that Congress in the 1936 amendment of the Wheeler-Howard Act reversed the non-monopoly policy in Alaska fisheries and authorized the Secretary to create a series of monopolies of the Alaska fishing waters. This the Secretary proceeded to do, beginning in 1943, after waiting seven years after the claimed authorization was enacted. Typical of these monopolies to the Indian citizens is that to the Karluk Indians here in question, about which the facts are undisputed.
A group of fifty families of Indians inhabit the village of Karluk. Their men were trappers and fishermen. How few trapped and fished is evidenced by the fact that in 1944 but 57 persons were eligible to vote to organize under the amended Wheeler-Howard Act, supra. Their men operated fish nets owned by the Alaska Packers Association in which they caught salmon by mooring one end of the net to a shore post and drawing the net across the salmon stream moving towards the Karluk River and its upper spawning beds. They also fished for salmon from their own boats. Their catch was sold to the Alaska Packers’ plant on the Karluk spit and to the appellee packers having plants elsewhere on Kodiak Island. They also were employed by the appellee canners on their boats, being paid, as the white fishermen, at so much per fish. In the non-fishing season they were employed by the local Alaska Packers’ plant.
There is no evidence that the catch of the white fishermen in the waters sought to be reserved for the Indians in any way lessened the catch of the fifty Indian families or the wages they earned. It is fair to assume that since six hundred-odd white fishermen used these waters without interfering with each other, the 57 Indian fishermen would find no greater interference. Indeed, so far as their purchasing power is concerned, it well may be that it was much higher than before the white men established their plants on Kodiak Island.
To this Indian group the Secretary’s instant Public Land Order 128 undisputably gave 35,000 acres, over 50 square miles, of upland “public lands” bordering on 15 miles of Shelikof Strait, the western boundary of Kodiak Island. The area of upland so reserved for the fifty families of the Karluk Indians is not questioned. The average for each family is over 700 acres, that is over four times the size of the homestead entry permitted to Indians in Alaska. 34 Stat. 197, 48 U.S.C.A. § 357.
The Secretary’s order also purports to give a fishing monopoly of the entire area of the waters in which the salmon stream to the Karluk River may be caught. This fishing monopoly is created by treating as “public lands” of the United States an area below low water in Shelikof Strait 15 miles long by 3,000 feet wide. That is to say, 5,450 acres or over 8% square miles covering the fishing area of the salmon run into the Karluk River spawning beds, From this reservation, if valid, the appellant’s brief properly claims there are excluded from trespass in its area all the 450 white fishermen shown to be hitherto employed there by the appellees, plus, say, 150 more by the large Alaska Packers’ plant on Karluk spit.
In the last season of 1946 the white fishermen of appellees caught 3,920,789 salmon in the purportedly monopolized area which were processed for the American food supply. To this must be added the large amount of the Alaska Packers. Appellees’ capital investment in plant and equipment, dependent in large part on these salmon, is $2,075,000. Plus this is the capital investment of the Alaska Packers’ Karluk plant The value of the appellees’ enterprises as going concerns is so large that it requires a pre-season expenditure of $1,515,000 and the employment as processors in the packing plants of appellees alone of 624 employees.
If this fishing monopoly exists, the Wheeler-Howard Act permits the sale to the white fishermen of rights to share in it. It is obvious that wha.t the Karluk community monopoly could extract from these food producers for the right to employ its fishermen in these monopolized waters well could be more than enough to comfortably sustain these Indians without any fishing or trapping at all.
Here is not the President’s but the withdrawing power of the Secretary of the Interior, a subordinate officer, which is in question and it is in connection with a statute which confers withdrawal power not in the general language of “lands of the United States” but only over “public lands.” The phrase “public lands” has been confined to a limited class of lands through a long line of Supreme Court decisions which always have distinguished them from other lands of the United States, and which hold that “public lands” do not include the lands below low water mark of ocean waters. These cases require the determination whether the word “public” before the word “lands” gives the phrase “public lands” a specific meaning which does not include such ocean waters and whether Congress would have placed it there if it intended to include such waters, since by omitting the word “public” the word “lands” by itself would have included them. The applicable principle is that restated from many prior decisions in Ex parte Public Bank, 278 U.S. 101, 104, 49 S.Ct 43, 44, 73 L.Ed, 202:
“No rale of statutory construction has been more definitely stated or more often repeated than the cardinal rule that ‘significance and effect shall, if possible, be accorded to every word. As early as in Bacon’s Abridgment, § 2, it was said that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” ’ ”
The same in Washington Market Co. v. Hoffman, 101 U.S. 112, 115, 25 L.Ed. 782.
The principle so stated is always applicable. Here it is the more so in determining whether Congress intended to reverse its anti-monopoly legislation in Alaska fishing in an amendment to an Act in neither of which ocean waters or fishing are mentioned, and upon which nothing concerning ocean waters or fishing appears in the committee reports.
That the all inclusive word “lands” in a statute or a treaty.providing for a reservation of “lands” for Indians includes s.uch navigable waters, has been clearly established. In Alaska Pacific Fisheries v. United States, 248 U.S. 78, 79, 39 S.Ct. 40, 63 L.Ed. 138, it was held that under a Congressional statute specifically creating for the Metlakahtla Indians a reservation of “the body of hands known as Annette Islands, situate in Alexander Archipelago in southeastern Alaska” 48 U.S.C.A. § 358, included the fishing grounds in the adjacent navigable waters and upheld regulations implementing the legislation which gave an exclusive right of fishery to the Indians in an area extending 3,000 feet from the shore line.
So also where Congress enacted that the President should set apart as Indian reservations in California “four tracts of land, within the limits of said sítate,” 13 Stat. 39, § 2, the President was empowered to include in a reservation of the land, the bed of the Klamath River even assuming, which was contested, that the river was navigable. Donnelly v. United States, 228 U.S. 243, 260, 262, 33 S.Ct. 449, 57 L.Ed. 820, Ann. Cas. 1913E, 710.
This court held of the treaty of 1855 with the Quillayute Indians of which Article II provided for a reservation to them of “a tract or tracts of land sufficient for their wants within the Territory of Washington,” 12 Stat. 971, that the treaty, so using the word “land,” warranted a presidential reservation of the tide-lands on. the ocean ■beach of the Quillayute River and of the navigable waters of that river for a distance of over a mile above its mouth. Moore v. United States, 9 Cir., 157 F.2d 760, certiorari denied 330 U.S. 827, 67 S.Ct. 867, 91 L.Ed., ___. So also we held of the word “lands” in the.provision of the Act of 1884 that Alaska “Indians or other persons * * * shall not be disturbed in the possession of any lands actually in their use or occupation” that “lands” included “tidelands” so in use. Heckman v. Sutter, 9 Cir., 119 F. 83, 88.
Since the use of the wordl “lands” alone in Section 2 of the statute of 1936 would have given the Secretary of the Interior ithe power to reserve the ocean waters below low tide, we are required to give significance to the use by Congress of the word “public” before the word “lands” unless the phrase “public lands” has been determined to include lands of the United States in the ocean below low water mark.
No such decision is cited by appellant and our search has revealed none. On the contrary, the decisions unanimously hold the phrase “public lands” to have an established meaning excluding such waters.
On December 11, 1935, a few months before Congress placed the qualifying word “public” before the word “lands” in Section 2 of the Act of 1936, the Supreme Court decided the case of Borax, Ltd. v. Los Angeles, 296 U.S. 10, 17, 56 S.Ct. 23, 80 L.Ed., 9. There, in holding that because the jurisdiction of the Department of the.Interior’s- Land Department extended in preemption claims only to “the public lands of the United States” that body could not render a final decision that preemption claimed lands were not tidelands, the Court states in 296 U.S. at page 17, 56 S.Ct. at page 27, 80 L.Ed. 9:
“Specifically, the term ‘public lands’ did not include tidelands. Mann v. Tacoma Land Co., 153 U.S. 273, 284, 14 S.Ct. 820, 38 L.Ed. 714. ‘The words “public lands” are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.’ ‘Newhall v. Sanger, 92 U.S. 761, 763, 23 L.Ed. 769; Barker v. Harvey, 181 U.S. 481, 490, 21 S.Ct. 690, 45 L.Ed. 963; Union Pac. R. Co. v. Harris, 215 U.S. 386, 388, 30 S.Ct. 138, 54 L.Ed. 246.”
,This continued limiting construction of the phrase “public lands” as distinguished from the general word “lands” of the United States is thus seen to extend over sixty years’ judicial consideration of our land laws.
In Mann v. Tacoma Land Co., 153 U.S. 273, 284, 14 S.Ct. 820, 822, 38 L.Ed. 714, Mann claimed title to certain tidelands in Commencement Bay in Puget Sound acquired by a location under script issued to one Valentine in lieu of lands claimed by him under a Mexican grant. This script was created by a special (not general) Act of Congress providing that Valentine or his succeeding holders of the script “may select, and shall be allowed, patents for an equal quantity of the unoccupied and unappropriated public lands of the United States.” 17 Stat. 649, 650, § 3. In holding that tidelands were not included in the phrase “public lands” the Supreme Court states:
“There is nothing in the act authorizing the Valentine script, or in the circumstances which gave occasion for its passage, to make an exception to the general rule. It provided that the script might be located on the unoccupied and unappropriated public lands, but the term ‘public lands’ does not include tide lands. As said in Newhall v. Sanger, 92 U.S. 761, [763, 23 L.Ed. 769] : ‘The words “public lands” are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.’ See also Leavenworth, etc., Railroad v. United States, 92 U.S. 733, [23 L.Ed. 634]; Doolan v. Carr, 125 U.S. 618, 8 S.Ct. 1228 [31 L.Ed. 844].”
The “general rule” referred to was that of Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331. Unlike the use of the phrase “public lands” in- the special legislation creating the Valentine script, the; phrase was used in the “general legislation” of September 27, 1850, 9 Stat. 496,-providing for a donation claim of “public" lands” which the Supreme Court held did' not include lands below high water mark. That Act provided for a grant to “every white settler or occupant of the public lands, American half-breed Indians included,” on certain conditions of occupancy and cultivation of the lands, of 320 acres if unmarried and an additional 320 acres to his wife if married to her before December 31, 1851. Despite this specific restriction of the legislation to the relatively ¡few whites and half-breed Indians in Oregon iri 1851, the Supreme Court states that the Oregon Donation Act is “general legislation” by which cannot be granted navigable waters adjoining such “public lands.”
It is thus apparent that whether the Act of 1936 be regarded as general legislation for all the Indians in Alaska or special legislation for their benefit, the phrase “public lands” does not include ocean waters any more than in the special legislation for Valentine or the general legislation for the Oregon whites and half-breeds there in 1851. Nor is the rule of Shively v. Bowlby confined to legislation for grants of land. In the case of United States v. Holt Bank, 270 U.S. 49, 55, 46 S.Ct. 197, 70 L.Ed. 465, its principle was applied in determining that a reservation of the Chippewa Indians surrounding navigable Mud Lake, whose area of 5,000 acres is comparable to the area of navigable waters here involved, did not include that lake.
This court in Heckman v. Sutter, 9 Cir., 128 F. 393, 394, 395, expressly distinguishes between the limited meaning of the phrase “public lands” as excluding ocean lands and distinguished that phrase from the phrase “any lands” of the-Act of May 17, 1884, which it held included Alaska tidelands under the rule of Shively v. Bowlby, stating:
“Nor is it reasonable to suppose that Congress intended the broad and comprehensive terms thus used by it to be limited by the interpretation put upon the term ‘public lands’ in the general land laws, which it expressly provided should not be in force in Alaska. ■* ■* *”
Despite the holding of the limiting meaning of the word “public” before the word “lands” in the Borax, Ltd. case, decided shortly before the Act of 1936, and our decision in Heckman v. Sutter, last cited, it is claimed that Congress intended that the latter Act must be construed as if the all-inclusive word “lands” alone were used. The argument is, in effect, that the coastal Indians of Alaska would be economically benefitted if the word “public” were absent.-and since the Wheeler-Howard Act contemplates an economic benefit to them we -.must construe it without that adjective.
Of course, it could not be contended that the only economic benefit Congress could have contemplated was a reservation of ocean waters, for here we have a reservation of fifty square miles of upland. So also does a reservation of upland bordering on fishing waters give to the Indians exclusive access to such waters from their shore, both for the launching of their boats and for the posts upon which are attached their nets held by boats across the streams of fish in the navigable waters.
That it would be a further economic benefit to create fishing monopolies in the Indians and thus destroy the established packing industries or compel them to pay tribute to them is also obvious, but for the reasons stated we think that Congress did not so intend when it used the phrase “public lands” in the 1936 amendment. The attempt of the Secretary, beginning in 1943, to create the several monopolies in ocean waters as part of “public lands” does not constitute an administrative interpretation overcoming the sixty years of contrary interpretation of the Supreme Court. There is no error in the holding of the district court that such attempted reservation of ocean waters in Public Order 128 is invalid.
In reaching this conclusion we have had in mind that the packing corporations, whose thousands of fishermen have so increased the world’s food production, are not to be regarded as eleemosynary institutions. The American way of the profit motive often leaves unjustly behind minority groups of lesser education and initiative. That the Alaska Indians have suffered in the past under the competitive system is obvious.- That statutes for their relief should be liberally construed in their1 favor is well established. Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138. What we have held is no more than that Congress did not intend to give such monopoly creating power to the Secretary of the Interior by the particular 1936 amendment to the Wheeler-Howard Act which does not concern the Alaska fisheries and in the consideration of which amendment the great food producers had no reason to participate and which could give no ground for their exclusion, from their established fishing grounds, except by a construction of its language contrary to the construction of over half a century.
II. The White Act does not permit a monopoly of fishing in these Indian citizens as a conservation measure.
There is no merit in the contention that, even assuming the ocean waters not reserved, regulation 208.23 (r) is a valid method of conservation because, under the Secretary’s direction, the licensees who share in the monopoly so may be limited that the balance between catch and reproduction of salmon is better maintained. The White Act gives the Secretary the wide discretion recognized in Dow v. Ickes, App.D.C., 123 F.2d 909, but it plainly says that in seeking conservation “no exclusive or several right of fishery shall be granted” in a regulated area — and here exclusive rights are given to the 57 Indians and their favored white licensees. Six hundred American fishermen will be “denied the right to * * * fish” which is given them wherever others are permitted under the White Act so to do.
Nor is there merit in the contention that this is a regulation giving a preference to resident as distinguished from non-resident fishermen held valid in many states. Here is boldly provided a sharing in the monopoly of a limited number of nonresident licensees, a purpose, the evidence shows, which was accomplished by the sale to them by the Indians of permits for the season of 1946.
Likewise with appellant’s contention that appellees cannot obtain relief because some of them actually fished under the Indian permits in the 1946 season. Obviously, under the wrongful threat of appellant to seize their boats during that season, they would pay the Indians their exaction rather than lose a large part of the pre-season expenditures of $1,515,000 which the district court found actually had been made. Action under such a threat cannot deprive appellees of the right to resist such threatened illegal action in succeeding seasons.
III. The Secretary is not an indispensable party. It thus appears that appellees are not to be excluded from fishing in the Karluk salmon run either by the Secretary’s purported reservation of public lands under the Act of 1936 or by his purported conservation reservation of the Karluk fishing area under the White Act. In both cases the purported action was without any authority whatsoever. Since all power to act was absent, the Secretary was not merely abusing a discretion and hence required to be joined. The rule as stated for this circuit in Neher v. Harwood, 9 Cir., 1942, 128 F.2d 846, 849, 158 A.L.R. 1116; certiorari denied 317 U.S. 659, 63 S.Ct. 57, 87 L.Ed. 529, is:
“In the two former cases the superior officer had acted under a statute which was not attacked as unconstitutional, but it was contended that the superior had in some manner abused his discretion and in such circumstance it was held that he should be made a party to the action in order to defend his direction and regulations. Where he was without authority to act at all in the premises his actions assuming to authorize action by the subordinate were of no validity and left the subordinate as the actor subject to restraint.” (Emphasis supplied.)
In that action, in 128 F.2d, at page 849, we described Colorado v. Toll, 268 U.S. 228, 45 S.Ct., 505, 69 L.Ed. 927, as a case in which the superior was not necessarily joined because “he had no statutory authority whatsoever to issue the regulations complained of.” So similarly Berdie v. Kurtz, 9 Cir., 75 F.2d 898.
The rule is similarly stated for the Sixth Circuit that where plaintiffs “are challenging the statutory power of the Administrator to promulgate the regulations in question * * * the Administrator was not an indispensable party to the action and the court had jurisdiction to proceed against the Administrator’s subordinates.” Varney v. Warehime, 6 Cir., 147 F.2d 238, 243; certiorari denied 325 U.S. 882, 65 S.Ct. 1575, 89 L.Ed. 1997. See also in the Fourth Circuit, Ainsworth v. Barn Ballroom Co., 157 F.
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:
|
sc_lcdisposition
|
D
|
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.
DENTON, DIRECTOR OF CORRECTIONS OF CALIFORNIA, et al. v. HERNANDEZ
No. 90-1846.
Argued February 24, 1992
Decided May 4, 1992
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 35.
James Ching, Supervising Deputy Attorney General of California, argued the cause for petitioners. With him on the briefs were Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Kenneth C. Young, Assistant Attorney General, and Joan W. Cavanagh, Supervising Deputy Attorney General.
Richard W. Nichols, by appointment of the Court, 502 U. S. 966, argued the cause and filed a brief for respondent.
Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Roberts filed a brief for the United States as amicus curiae urging reversal.
Elizabeth Alexander, David C. Fathi, John A Powell, Steven R. Shapiro, and Matthew Coles filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Justice O’Connor
delivered the opinion of the Court.
The federal in forma pauperis statute, codified at 28 U. S. C. § 1915, allows an indigent litigant to commence a civil or criminal action in federal court without paying the administrative costs of proceeding with the lawsuit. The statute protects against abuses of this privilege by allowing a district court to dismiss the case “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” § 1915(d). In Neitzke v. Williams, 490 U. S. 319 (1989), we considered the standard to be applied when determining whether the legal basis of an in forma pauperis complaint is frivolous under § 1915(d). The issues in this case are the appropriate inquiry for determining when an in forma pauperis litigant’s factual allegations justify a § 1915(d) dismissal for frivolousness, and the proper standard of appellate review of such a dismissal.
HH
Petitioners are 15 officials at various institutions in the California penal system. Between 1983 and 1985, respondent Mike Hernandez, a state prisoner proceeding pro se, named petitioners as defendants in five civil rights suits filed in forma pauperis. In relevant part, the complaints in these five suits allege that Hernandez was drugged and homosexually raped a total of 28 times by inmates and prison officials at different institutions. With few exceptions, the alleged perpetrators are not identified in the complaints, because Hernandez does not claim any direct recollection of the incidents. Rather, he asserts that he found needle marks on different parts of his body, and fecal and semen stains on his clothes, which led him to believe that he had been drugged and raped while he slept.
Hernandez’s allegations that he was sexually assaulted on the nights of January 13, 1984, and January 27, 1984, are supported by an affidavit signed by fellow prisoner Armando Esquer (Esquer Affidavit), which states:
“On January 13, 1984, at approximately 7:30 a.m., I was on my way to the shower, when I saw correctional officer McIntyre, the P-2 Unit Officer, unlock inmate Mike Hernandez’s cell door and subsequently saw as two black inmates stepped inside his cell. I did not see Officer McIntyre order these two black inmates out of inmate Mike Hernandez’s cell after they stepped inside, even though inmate Mike Hernandez was asleep inside. After about ten minutes, I returned from the shower, and I noticed my friend, Mike Hernandez, was being sexually assaulted by the two black inmates. Officer Mcln-tyre returned to lock inmate Mike Hernandez’s cell door after the two black inmates stepped out. I watch[ed] all this activity from the hallway and my cell door.
“On January 27th, 1984,1 was again on my way to the shower, when I noticed the same correctional officer as he unlocked inmate Mike Hernandez’s cell door, and also saw as two black inmates stepped inside inmate Mike Hernandez’s cell. Then I knew right away that both they and Officer McIntyre were up to no good. After this last incident, I became convinced that Officer McIntyre was deliberately unlocking my friend, Mike Hernandez’s cell as he [lay] asleep, so that these two black inmates could sexually assault him in his cell.” Exhibit H in No. CIV S-85-0084, Brief for Respondent 9.
Hernandez also attempted to amend one complaint to include an affidavit signed by fellow inmate Harold Pierce, alleging that on the night of July 29, 1983, he “witnessed inmate Dushane B-71187 and inmate Milliard B-30802 assault and rape inmate Mike Hernandez as he lay . . . asleep in bed 206 in the N-2 Unit Dorm.” See Exhibit G to Motion to Amend Complaint in Hernandez v. Denton, et al., No. CIV S-83-1348 (June 19, 1984), Brief for Respondent 6.
The District Court determined that the five cases were related and referred them to a Magistrate, who recommended that the complaints be dismissed as frivolous. The Magistrate reasoned that “ ‘each complaint, taken separately, is not necessarily frivolous,’ ” but that “ ‘a different picture emerges from a reading of all five complaints together.’” Id., at 11. As he explained: “ ‘[Hernandez] alleges that both guards and inmates, at different institutions, subjected him to sexual assaults. Despite the fact that different defendants are allegedly responsible for each assault, the purported modus operandi is identical in every case. Moreover, the attacks occurred only sporadically throughout a three year period. The facts thus appear to be “wholly fanciful” and justify this court’s dismissal of the actions as frivolous.’” Ibid. By order dated May 5, 1986, the District Court adopted the recommendation of the Magistrate and dismissed the complaints.
Hernandez appealed the dismissal of three of the five cases (Nos. CIV S-83-0645, CIV S-83-1348, CIV S-85-0084; see n. 1, supra). Reviewing the dismissal de novo, the Court of Appeals for the Ninth Circuit reversed and remanded. Hernandez v. Denton, 861 F. 2d 1421 (1988). In relevant part, Judge Schroeder’s lead opinion concluded that a district court could dismiss a complaint as factually frivolous only if the allegations conflicted with judicially noticeable facts, that is, facts “‘capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’” Id., at 1426 (quoting Fed. Rule Evid. 201). In this case, Judge Schroeder wrote, the court could not dismiss Hernandez’s claims as frivolous because it was impossible to take judicial notice that none of the alleged rapes occurred. 861 F. 2d, at 1426. Judge Wallace concurred on the ground that Circuit precedent required that Hernandez be given notice that his claims were to be dismissed as frivolous and a chance to amend his complaints to remedy the deficiencies. Id., at 1427. Judge Aldisert dissented. He was of the opinion that the allegations were “the hallucinations of a troubled man,” id., at 1440, and that no further amendment could save the complaint, id., at 1439-1440.
We granted petitioners’ first petition for a writ of certiorari, 493 U. S. 801 (1989), vacated the judgment, and remanded the case to the Court of Appeals for consideration of our intervening decision in Neitzke v. Williams, 490 U. S. 319 (1989). On remand, the Court of Appeals reaffirmed its earlier decision. 929 F. 2d 1374 (1991). Judge Schroeder modified her original opinion to state that judicial notice was just “one useful standard” for determining factual frivolousness under § 1916(d), but adhered to her position that the case could not be dismissed because no judicially noticeable fact could contradict Hernandez’s claims of rape. Id., at 1376. Judge Wallace and Judge Aldisert repeated their earlier views.
We granted the second petition for a writ of certiorari to consider when an informa pauperis claim may be dismissed as factually frivolous under § 1915(d). 502 U. S. 937 (1991). We hold that the Court of Appeals incorrectly limited the power granted the courts to dismiss a frivolous case under § 1915(d), and therefore vacate and remand the case for application of the proper standard.
II
In enacting the federal in forma pauperis statute, Congress “intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, in any court of the United States, solely because ... poverty makes it impossible ... to pay or secure the costs” of litigation. Adkins v. E. I. DuPont de Nemours & Co., 335 U. S. 331, 342 (1948) (internal quotation marks omitted). At the same time that it sought to lower judicial access barriers to the indigent, however, Congress recognized 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.” Neitzke, supra, at 324. In response to this concern, Congress included subsection (d) as part of the statute, which allows the courts to dismiss an in forma pauperis complaint “if satisfied that the action is frivolous or malicious.”
Neitzke v. Williams, supra, provided us with our first occasion to construe the meaning of “frivolous” under § 1915(d). In that case, we held that “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.” Id., at 325. In Neitzke, we were concerned with the proper standard for determining frivolousness of legal conclusions, and we determined that a complaint filed informa pauperis which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) may nonetheless have “an arguable basis in law” precluding dismissal under § 1916(d). 490 U. S., at 328-329. In so holding, we observed that the informa pauperis statute, unlike Rule 12(b)(6), “accords judges not only the authority to dismiss a claim based on an indisputably merit-less 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.” Id., at 327. “Examples of the latter class,” we said, “are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.” Id., at 328.
Petitioners contend that the decision below is inconsistent with the “unusual” dismissal power we recognized in Neitzke, and we agree. Contrary to the Ninth Circuit’s assumption, our statement in Neitzke that § 1915(d) gives courts the authority to “pierce the veil of the complaint’s factual allegations” means that a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff’s allegations. We therefore reject the notion that a court must accept as “having an arguable basis in fact,” id., at 325, all allegations that cannot be rebutted by judicially noticeable facts. At the same time, in order to respect the congressional goal of “assuring] equality of consideration for all litigants,” Coppedge v. United States, 369 U. S. 438, 447 (1962), this initial assessment of the informa pauperis plaintiff’s factual allegations must be weighted in favor of the plaintiff. In other words, the § 1915(d) frivolousness determination, frequently made sua sponte before the defendant has even been asked to file an answer, cannot serve as a factfinding process for the resolution of disputed facts.
As we stated in Neitzke, a court may dismiss a claim as factually frivolous only if the facts alleged are “clearly baseless,” 490 U. S., at 327, a category encompassing allegations that are “fanciful,” id., at 325, “fantastic,” id., at 328, and “delusional,” ibid. As those words suggest, a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them. An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff’s allegations unlikely. Some improbable allegations might properly be disposed of on summary judgment, but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be “strange, but true; for truth is always strange, Stranger than fiction.” Lord Byron, Don Juan, canto XIV, stanza 101 (T. Steffan, E. Steffan, & W. Pratt eds. 1977).
Although Hernandez urges that we define the “clearly baseless” guidepost with more precision, we are confident that the district courts, who are “all too familiar” with factually frivolous claims, Neitzke, supra, at 328, are in the best position to determine which cases fall into this category. Indeed, the statute’s instruction that an action may be dismissed if the court is “satisfied” that it is frivolous indicates that frivolousness is a decision entrusted to the discretion of the court entertaining the in forma pauperis petition. We therefore decline the invitation to reduce the “clearly baseless” inquiry to a monolithic standard.
Because the frivolousness determination is a discretionary one, we further hold that a § 1915(d) dismissal is properly reviewed for an abuse of that discretion, and that it was error for the Court of Appeals to review the dismissal of Hernandez’s claims de novo. Cf. Boag v. MacDougall, 454 U. S. 364, 365, n. (1982) (per curiam) (reversing dismissal of an informa pauperis petition when dismissal was based on an erroneous legal conclusion and not exercise of the “broad discretion” granted by § 1915(d)); Coppedge, supra, at 446 (district court’s certification that in forma pauperis appellant is taking appeal in good faith, as required by § 1915(a), is “entitled to weight”). In reviewing a § 1915(d) dismissal for abuse of discretion, it would be appropriate for the Court of Appeals to consider, among other things, whether the plaintiff was proceeding pro se, see Haines v. Kerner, 404 U. S. 519, 520-521 (1972); whether the court inappropriately resolved genuine issues of disputed fact, see supra, at 32-33; whether the court applied erroneous legal conclusions, see Boag, 454 U. S., at 365, n.; whether the court has provided a statement explaining the dismissal that facilitates “intelligent appellate review,” ibid.; and whether the dismissal was with or without prejudice.
With respect to this last factor: Because a § 1915(d) dismissal is not a dismissal on the merits, but rather an exercise of the court’s discretion under the informa pauperis statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations. It could, however, have a res judicata effect on frivolousness determinations for future in forma pauperis petitions. See, e. g., Bryant v. Civiletti, 214 U. S. App. D. C. 109, 110-111, 663 F. 2d 286, 287-288, n. 1 (1981) (§ 1915(d) dismissal for frivolousness is res judicata); Warren v. McCall, 709 F. 2d 1183, 1186, and n. 7 (CA7 1983) (same); cf. Rogers v. Bruntrager, 841 F. 2d 853, 855 (CA8 1988) (noting that application of res judicata principles after § 1915(d) dismissal can be “somewhat problematical”). Therefore, if it appears that frivolous factual allegations could be remedied through more specific pleading, a court of appeals reviewing a § 1915(d) disposition should consider whether the district court abused its discretion by dismissing the complaint with prejudice or without leave to amend. Because it is not properly before us, we express no opinion on the Ninth Circuit rule, applied below, that a pro se litigant bringing suit informa pauperis is entitled to notice and an opportunity to amend the complaint to overcome any deficiency unless it is clear that no amendment can cure the defect. E. g., Potter v. McCall, 433 F. 2d 1087, 1088 (1970); Noll v. Carlson, 809 F. 2d 1446 (1987).
Accordingly, we vacate the judgment below and remand the case for proceedings consistent, with this opinion.
It is so ordered.
See Amended Complaint in Hernandez v. Ylst, et al., No. CIV S-83-0645 (Feb. 9, 1984) (alleging rape by unidentified correctional officers at California State Prison at Folsom on the night of July 29, 1982), Brief for Respondent 2-4; Motion to Amend Complaint in Hernandez v. Denton, et al., No. CIV S-83-1348 (June 19,1984) (alleging rape by one or more prisoners at California Medical Facility at Vacaville on the night of July 29, 1983, and one additional episode in December 1983), Brief for Respondent 5; Complaint in Hernandez v. Ylst, et al., No. CIV S-84-1074 (Aug. 20, 1984) (alleging six additional druggings and rapes occurring between August 12 and November 4, 1983), Brief for Respondent 6; Complaint in Hernandez v. Ylst, et al., No. CIV S-84-1198 (Sept. 17, 1984) (alleging three additional incidents occurring between November 26 and December 12, 1983), Brief for Respondent 6-7; Complaint in Hernandez v. Ylst, et al., No. CIV S-85-0084 (Jan. 21,1985) (alleging 16 additional incidents occurring between January 13 and December 10, 1984), Brief for Respondent 7.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_othcrim
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. 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".
NEW YORK LIFE INS. CO. v. MILLER.
No. 12680.
Circuit Court of Appeals, Eighth Circuit.
Jan. 12, 1944.
Ferdinand II. Pease, of New York City, Virgil Willis, of Harrison, Ark., and A. F. House, of Little Rock, Ark., for appellant.
No appearance for appellee.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
PER CURIAM.
This action was brought in a state court of Arkansas by the appellee, Dora Miller, a resident of that State, against the appellant, to recover upon a policy of life insurance in which she was the beneficiary. The policy was issued in January, 1930, by the appellant, a life insurance company of New York, to Flora M. Maddox, later Flora M. Dillon, a citizen of California, who died in December, 1941, while the policy was in force. The appellant removed the case to the United States District Court for the Western District of Arkansas, and by answer and cross-complaint converted it into an action in interpleader, with Dora Miller (the appellee), Carl Maddox, the first husband of Flora M. Dillon, the insured, (from whom she had been divorced September 9, 1931), and Claude Dillon, her second husband, as adverse claimants. In its answer the appellant admitted its liability under the policy, but asserted its inability to determine whether all premiums were paid by the insured or whether Carl Maddox and Claude Dillon, named as cross-defendants, contributed to the payment of premiums. In its cross-complaint the appellant asserted that it had deposited the amount due upon the policy in the registry of the court; that there were two or more adverse claimments, citizens of different states, who claimed to be entitled to the money, namely, Dora Miller, a citizen of Arkansas, Carl Maddox, a citizen of Colorado, and Claude Dillon, a citizen of California; that Carl Maddox claimed that his' individual and community funds were used in the payment of premiums on the policy and that he was entitled to a community interest in the proceeds of the policy; that Claude Dillon made a similar claim; and that the appellant could not, with safety to its own interest,- recognize any of the conflicting claims. The prayer of the cross-complaint was for a determination of the rights of the appellee and the cross-defendants to the fund paid into court, for an injunction against the bringing of other suits upon the policy, and for an allowance of costs and an attorneys’ fee.
Upon the filing of the appellant’s answer and cross-complaint, the court entered an order for the service of process on the cross-defendants, Maddox and Dillon, and enjoining them from prosecuting other suits upon the policy. Maddox filed a disclaimer, and Dillon failed to answer. The appellee moved for judgment by default against Dillon and for a judgment against the appellant for the amount due under the policy, and, in addition, for the 12 per cent penalty and attorney’s fees provided by the statute of Arkansas in cases in which an insurance company has failed to pay the amount due upon a policy within the time specified in the policy. Section 7670 of the 1942 Supp. to Pope’s Digest of the Statutes of Arkansas 1937. The court entered judgment against the appellant as prayed for by the appellee, including in the judgment the statutory penalty and an attorney’s fee of $300, and required that the fund in the registry of the court be turned over to counsel for the appellee and be credited upon the judgment against the appellant. The court denied the appellant’s request for an allowance for attorneys’ fees. .This appeal is from the judgment.
The appellant contends that the court erred (1) in including the statutory penalty and attorney’s fees in the judgment, and (2) in denying an allowance of attorneys’ fees to the appellant.
The parties to the policy in suit were a citizen of California and a corporation of New York. The policy was payable in New York, was delivered in California, and matured in that State. In Business Men’s Accident Ass’n of America v. Cowden, 131 Ark. 419, 199 S.W. 108, 112, the Supreme Court of Arkansas held that the statute providing for the 12 per cent penalty and a reasonable attorney’s fee “was not intended to penalize a company for policies which were written and which matured in another state.” The Supreme Court of the United States ruled in Ætna Life Ins. Co. v. Dunken, 266 U.S. 389, 399, 45 S.Ct. 129, 69 L.Ed. 342, that such a state statute cannot constitutionally be applied to contracts made by citizens of other states. The Arkansas statute upon which the District Court relied in awarding to the appellee the statutory penalty and attorney’s fee is not applicable to the policy in suit. No such penalty or attorney’s fee should have been included in the judgment appealed from.
We think that the appellant was entitled to an allowance for attorneys’ fees out of the fund deposited in the registry of the court. The record discloses that the appellant was a disinterested stakeholder acting in good faith and on the advice of counsel, and that it had resisted payment of the appellee’s claim only for the purpose of protecting itself against the claims of Maddox and Dillon, from whom the appellee had not been able to procure disclaimers. The Interpleader Act of 1936, 49 Stat. 1096, 28 U.S.C.A. § 41(26) (e), authorizes the procedure which the appellant adopted to protect itself against the danger of multiple liability and to convert the appellee’s action upon the policy into a suit in inter-pleader. It is not conceivable to us that it makes any difference whether a disinterested stakeholder who is entitled to avail himself of the remedy of interpleader brings a separate suit and enjoins the claimants from bringing or proceeding with other actions, or whether he accomplishes exactly the 'same result by the means selected by the appellant in the instant case. If the appellant had brought an independent suit in interpleader, it would have been entitled to an allowance for attorneys’ fees to be determined by the District Court and paid out of the fund in Court. Mutual Life Ins. Co. v. Bondurant, 6 Cir., 27 F.2d 464, 466; Hunter v. Federal Life Ins. Co., 8 Cir., 111 F.2d 551, 557. There is no reason to penalize the appellant because it accomplished the same result in a different, but entirely legitimate, way. The amount to be allowed the appellant by the District Court as an attorneys’ fee should not exceed what would have been allowed had the suit been an independent suit in interpleader.
The case is remanded with directions to modify the judgment in accordance with this opinion. When so modified, the judgment will stancj affirmed. The costs of this appeal will be charged to the appellee.
See, also, Inter-Ocean Casualty Co. v. Warfield, 173 Ark. 287, 292 S.W. 129.
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_initiate
|
F
|
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.
FLETCHER v. COMMISSIONER OF INTERNAL REVENUE.
No. 9, Docket 20559.
Circuit Court of Appeals, Second Circuit
Nov. 5, 1947.
Martin F. Kendrick, Laurence Dovik, and Victor Levine, all of Syracuse, N. Y., for petitioner.
Fred E. Youngman, of Washington D.C., Sewall Key, Acting Asst. Atty.Gen., and George A. Stinson, Sp. Asst, to Atty. Gen., for respondent.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
L. HAND, Circuit Judge.
This appeal concerns an assessment for deficiency in the income tax of the taxpayer for the year 1941. The question is whether a part of the income from his business as a wholesale and retail seller of gasoline, oil and automobile accessories should be included in his sister’s income, or in his. The facts as the Tax Court found them are not in dispute, and the substance of them is as follows. The taxpaj'er lived in Utica where he owned and conducted the business ; he was forty-one years old, was married and had an adopted daughter, aged twelve. Hg also had two brothers and two sisters; one brother was crippled, the other brother, Vincent, he employed. One sister was married and lived at Dannemora, New York; the other, Helen, lived in Utica with the taxpayer’s mother, a woman seventy-one years old in 1941; Helen was unmarried and worked as a secretary for a newspaper at a salary of $1500, which was not enough for hersel'f and her mother and to which the taxpayer added for his mother’s support. During the year 1940 he told his sister in his mother’s presence that he meant to give her $50,000 and one third of the income of the business; and in July of the following year he and she executed an agreement, creating a partnership between the two on which he relies to escape taxation upon one third of his income.
This agreement recited that he had “transferred” $50,000 to her “out of the capital account” of the business — $181,323.-35 in all — and had “set upon the books of the company” a capital account of $50,000 in her name. He “confirmed” this transfer; declared her to be “the unqualified owner” of that much of the “capital stock”; that the gift was “evidenced by the transfer upon the books”; and that the amount of her interest in the capital should not be affected by any profits or losses of the business. The taxpayer was to be “general manager” and “the net profits from-operations of the company shall be divided” two thirds to him, one third to her. The credit to the account of each partner was to be “subject to withdrawal in cash at such time as the cash position of the company warrants the same” as to which his decision “will be final.” He reserved a pre-emptive right, if she should wish to sell, to buy her out at $50,000, plus anything to her credit on the books and her share of any uncredited profits. It appeared that in 1941 she drew out at least $6500; but she took no part in the management and after July 1, 1941, Vincent had full charge of the retail branch. -The taxpayer’s motive in all this was in part to enable his sister to provide for his mother and in part to reduce his taxes. The Tax Court thought the situation fell within the decisions in Commissioner v. Tower, and Lusthaus v. Commissioner, and held that the whole income of the business should be included in the brother’s return.
If a taxpayer goes through the form of conveying property to his wife, or child, or parent, or sister or anyone else, wath the understanding that the grantee shall hold It at the grantor’s pleasure and shall give it back on demand, there has been no transfer at all, any more than if it were made as a jest. It is always possible to prove, no matter what documents the parties may have executed, that they have covertly agreed upon a substitute, although it must he owned that courts have at times supposed the contrary. If Tower’s case and Lusthaus’s case had concerned situations of that kind, they would have presented only commonplace attempts to defraud the Treasury by -setting up false screens. We do not understand that the court so regarded the transactions, although the opinion speaks of the articles as not forming “a real partnership,” <327 U.S. p. 287, 66 S.Ct. 536; that “no partnership really exists and that earnings are really his,” 327 U.S. p. 289, 66 S.Ct. 537; that “the wife was not really a partner,” .327 U.S. p. 289, 66 S.Ct. 537; that the Tax Court is not to “shut its eyes to the realities of tax avoidance schemes,” 327 U.S. p. 289, «66 S.Ct. 537; and that the issué is whether the spouses “really intended * * * a partnership,”'327 U.S. p. 289, 66 S.Ct. 537. Nevertheless, we do not read this use of the words “real,” “really” and “realities,” as meaning that as between the parties the papers did not measure the enforceable rights and liabilities. A partnership may jbe “real” in that sense, but “unreal” when it comes to taxing the partners; the question in such cases is what circumstances deprive it of this kind of “reality.” As we understand it, there are four conditions •whose combined existence will make such .a partnership “unreal” when taxes are in question : (1) If the grantee’s contribution to the firm capital is a gift of the grantor; (2) if the grantor and the grantee are spouses; (3) if the grantor retains control over the management of the business; (4) if he makes the gift and sets up the firm to avoid taxation. It is true that only Rutledge, J., heid that these were constitutive facts as such; and the majority merely held that they provided a basis for a finding by the Tax Court; but the difference is unimportant here, for this appeal too is from the Tax Court.
In all such situations a reserved power to manage the property transferred has been regarded as significant because it is so important a part of those powers and interests which, taken as a whole, make up the right of “property.” Its retention by the grantor goes far to keep the “property” in him, even in cases where he has finally transferred all beneficial enjoyment. For example, in the analogous situation of a “family trust,” this has always counted for much. Moreover, even as to those interests which do pass from the grantor beyond reclaim, it has been thought relevant that spouses are likely to be in such a harmonious relation to each other that the wife is not likely to exert her legal power in opposition to her husband’s will. Why the motive to escape taxation should be thought relevant, is not so plain; especially since the court usually adds, as it did here, that a man may in general arrange his affairs to keep down his taxes. Conceivably the reason for its relevancy in this situation it that, if the wife supposes the gift and the partnership to be an unmixed benefaction, she may be less disposed to be complaisant with her husband’s wishes, than if she knows that they were, in part at least, a device to save his own money. The distinction seems a little tenuous, it must be owned; we suggest it only because it has been often said that all that counts is the degree of control retained over the income, and we can think of no other rational bearing upon that which the husband’s motive can have.
These are concededly innovations in the notion of property as it is ordinarily understood; indeed the court frankly avows that it does not read the statute as fitting upon the existing pattern of legal concepts at all; but as carrying implicitly glosses, appropriate to the policy of the act as a whole. Since we do not have the last word in deciding how far Congress used its words in this esoteric sense, we cannot be sure how literally a new set of facts must conform to those which have been adjudicated. Nevertheless, after all allowance has been made, and after attempting as best we can to divine the underlying principles, it does seem to us that the fact that here the grantor and grantee were brother and sister, instead of husband and wife, should not be crucial. The taxpayer at bar reserved complete management of the business, and it was scarcely more likely that his sister would assert her rights against his will than if she had been his wife. His motives were no less to avoid taxation than was inevitable, if the gift was not to be a sham; for, as we have said, when the grantor does not part with all beneficial interest, there is really no problem. Moreover, there are further reasons here for this result in the added powers of control reserved to the grantor. His sister could not withdraw a dollar without his assent; and he had a pre-emptive right to buy her out at the amount of his original gift, no matter what the value of her interest might be.
Order affirmed.
327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670,164 A.L.R. 1135.
327 U.S. 293, 66 S.Ct. 539, 90 L.Ed. ■679.
Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788.
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_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America v. Jerome Philip DUTKIEWICZ, Appellant.
No. 17442.
United States Court of Appeals, Third Circuit.
Argued May 19, 1970.
Decided Aug. 3, 1970.
Joel I. Bergman, Orange, N. J., Charles Armbruster, Jersey City, N. J., for appellant.
George J. Koelzer, Asst. U. S. Atty., Newark, N. J. (Frederick B. Lacey, U. S. Atty., Newark, N. J., on the brief), for appellee.
Before ALDISERT and ADAMS, Circuit Judges, and HIGGINBOTHAM, District Judge.
OPINION OF THE COURT
PER CURIAM:
Appellant, Jerome Philip Dutkiewicz, mounts a two-pronged attack on the validity of his conviction by jury for the crime of transporting a stolen motor vehicle across the state lines, 18 U.S.C.A. § 2312. Dutkiewicz’s claims arise out of testimony and evidence introduced at trial by Special Agent Eugene Coyle of the Federal Bureau of Investigation. While awaiting trial Dutkiewicz was interviewed by Agent Coyle in the Hudson County Jail on September 14, 1966. At that time appellant first signed a waiver of his Constitutional rights and then confessed to transporting a stolen automobile from New Jersey to New York.
Dutkiewicz now claims that he was under the influence of narcotics at the time he confessed and was therefore unable intelligently to waive his Constitutional rights. Appellant further contends that his confession was involuntary because it was secured through psychological coercion.
In accordance with procedures sanctioned by the United States Supreme Court since Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), District Judge Robert Shaw considered appellant’s two contentions in the course of a very thorough hearing out of the presence of the jury. (See Trial Notes of Testimony, pp. 20-100). At the conclusion of the hearing Judge Shaw concluded that the waiver of rights and confession were voluntarily given. The testimony was then presented to the jury, which returned a verdict of guilty.
We have examined the entire trial record, including the record of the Jackson-Denno hearing, and must agree with Judge Shaw’s conclusions. The Government has met its heavy burden of demonstrating that Dutkiewicz knowingly and intelligently waived his Constitutional rights. Miranda v. State of Arizona, 384 U.S. 436, at 475, 86 S.Ct. 1602, at 1628, 16 L.Ed.2d 694 (1966). As for the confession, “the question in each case is whether the [appellant’s] will was overborne at the time he confessed” Lynumn v. State of Illinois, 372 U.S. 528 at 534, 83 S.Ct. 917 at 920, 9 L.Ed.2d 922 (1963). The record clearly justifies the trial court’s finding that the appellant’s will was not so overborne.
The judgment of conviction will be affirmed.
. The waiver which Dutkiewicz signed read as follows:
“YOUR RIGHTS
“Place Hudson Co. Jail. J.C.N.J.
“Date 9/14/66
“Time 10:40 A.M.
“Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you talk to a lawyer.
“WAIVER
I have read the statement of my rights shown above. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me.
“Signed /s/ Jerome Dutkiewicz
“Witness /s/ Eugene E. Coyle — SA FBI, Nwk., N.J.
“Witness
“Time 10:45 A.M.”
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_certreason
|
L
|
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.
ADARAND CONSTRUCTORS, INC. v. SLATER, SECRETARY OF TRANSPORTATION, et al.
No. 99-295.
Decided January 12, 2000
Per Curiam.
I
Congress has adopted a policy that favors contracting with small businesses owned and controlled by the socially and economically disadvantaged. See § 8(d)(1) of the Small Business Act, as added by §7 of Pub. L. 87-305,75 Stat. 667, and as amended, 15 U. S. C. § 637(d)(1) (1994 ed., Supp. IV). To effectuate that policy, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102-240, § 1003(b), 105 Stat. 1919, which is an appropriations measure for the Department of Transportation (DOT), seeks to direct 10 percent of the contracting funds expended on projects funded in whole or in part by the appropriated funds to transportation projects employing so-called disadvantaged business enterprises. ISTEA § 1003(b)(1).
To qualify for that status, the small business must be certified as owned and controlled by socially and economically disadvantaged individuals. DOT does not itself conduct certifications, but relies on certifications from two main sources: the Small Business Administration, which certifies businesses for all types of federal procurement programs, and state highway agencies, which certify them for purposes of federally assisted highway projects. The federal regulations governing these certification programs, see 13 CFR pt. 124 (1999) (Small Business Administration); 64 Fed. Reg. 5096-5148 (1999) (to be codified in 49 CFR pt. 26) (DOT for state highway agencies), require that the certifying entity presume to be socially disadvantaged persons who are black, Hispanic, Asian Pacific, Subcontinent Asian, Native Americans, or members of other groups designated from time to time by the Small Business Administration. See 13 CFR § 124.103(b); 64 Fed. Reg. 5136 (§26.67). State highway agencies must in addition presume that women are socially disadvantaged. Ibid. Small businesses owned and controlled by persons who are not members of the preferred groups may also be certified, but only if they can demonstrate social disadvantage. See 13 CFR § 124.103(c); 64 Fed. Reg. 5136-5137 (§ 26.67(d)); id., at 5147-5148 (pt. 26, subpt. D, App. E). Third parties, as well as DOT, may challenge findings of social disadvantage. See 13 CFR § 124.1017(a); 64 Fed. Reg. 5142 (§26.87).
II
In 1989, DOT awarded the prime contract for a federal highway project in Colorado to Mountain Gravel & Construction Company. The contract included a Subcontractor Compensation Clause — which the Small Business Act requires all federal agencies to include in their prime contracts, see 15 U. S. C. § 637(d) — rewarding the prime contractor for subcontracting with disadvantaged business enterprises, see § 637(d)(4)(E). Petitioner, whose principal is a white man, submitted the low bid on a portion of the project, but Mountain Gravel awarded the subcontract to a company that had previously been certified by the Colorado Department of Transportation (CDOT) as a disadvantaged business enterprise.
Petitioner brought suit against various federal officials, alleging that the Subcontractor Compensation Clause, and in particular the race-based presumption that forms its foundation, violated petitioner’s Fifth Amendment right to equal protection. The Tenth Circuit, applying the so-called intermediate scrutiny approved in some of our cases involving classifications on a basis other than race, see Mississippi Univ. for Women v. Hogan, 458 U. S. 718 (1982); Craig v. Boren, 429 U. S. 190 (1976), upheld the use of the clause and the presumption. Adarand Constructors, Inc. v. Peña, 16 F. 3d 1537 (1994). Because DOT’S use of race-based measures should have been subjected to strict scrutiny, we reversed and remanded for the application of that standard. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 237-239 (1995) (Adarand I).
On remand, the District Court for the District of Colorado held that the clause and the presumption failed strict scrutiny because they were not narrowly tailored. Adarand Constructors, Inc. v. Peña, 965 F. Supp. 1556 (1997) (Adarand II). Specifically, the court held the presumption that members of the enumerated racial groups are socially disadvantaged to be both overinelusive and underinclusive, because it includes members of those groups who are not disadvantaged and excludes members of other groups who are. Id., at 1580. The District Court enjoined DOT from using the elause and its presumption. Id., at 1584. Respondents appealed to the Tenth Circuit.
Shortly thereafter, and while respondents’ appeal was still pending, petitioner filed a second suit in the District Court, this time naming as defendants certain Colorado officials, and challenging (on the same grounds) the State’s use of the federal guidelines in certifying disadvantaged business enterprises for federally assisted projects. Adarand Constructors, Inc. v. Romer, Civ. No. 97-K-1351 (June 26, 1997). Shortly after this suit was filed, however, Colorado altered its certification program in response to the District Court's decision in Adarand II. Specifically, the State did away with the presumption of social disadvantage for certain minorities and women, App. to Pet. for Cert. 109-111, and in its place substituted a requirement that all applicants certify on their own account that each of the firm’s majority owners “has experienced social disadvantage based upon the effects of racial, ethnic or gender discrimination,” id., at 110. Colorado requires no further showing of social disadvantage by any applicant.
A few days after Colorado amended its certification procedure, the District Court held a hearing on petitioner’s motion for a preliminary injunction in Romer. The District Court took judicial notice of its holding in Adarand II that the Federal Government had discriminated against petitioner’s owner “by the application of unconstitutional rules and regulations.” App. to Pet. for Cert. 136. As a result of that race-based discrimination, the District Court reasoned, petitioner likely was eligible for disadvantaged business status under Colorado’s system for certifying businesses for federally assisted projects — the system at issue in Romer. App. to Pet. for Cert. 137. The District Court therefore denied petitioner’s request for a preliminary injunction. Id., at 138. Petitioner then requested and received disadvantaged business status from CDOT.
Meanwhile, respondents’ appeal from the District Court’s decision in Adamnd II was pending before the Tenth Circuit. Upon learning that CDOT had given petitioner disadvantaged business status, the Tenth Circuit held that the cause of action was moot, and vacated the District Court’s judgment favorable to petitioner in Adarand II. 169 F. 3d 1292, 1296-1297, 1299 (CA10 1999). Petitioner filed a petition for certiorari.
Ill
In dismissing the ease as moot, the Tenth Circuit relied on the language of the Subcontractor Compensation Clause, which provides that “[a] small business concern will be considered a [disadvantaged business enterprise] after it has been certified as such by . . . any State’s Department of Highways/Transportation.” Id., at 1296. Because CDOT had certified petitioner as a disadvantaged business enterprise, the court reasoned, the language of the clause indicated that the Federal Government also had accepted petitioner’s certification for purposes of federal projects. As a result, petitioner could no longer demonstrate “ ‘an invasion of a legally protected interest’ that is sufficiently ‘concrete and particularized’ and ‘actual or imminent’” to establish standing. Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992)). Because, the court continued, petitioner could not demonstrate such an invasion, its cause of action was moot. 169 F. 3d, at 1296-1297.
In so holding, the Tenth Circuit “confused mootness with standing,” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., ante, at 189, and as a result placed the burden of proof on the wrong party. If this case is moot, it is because the Federal Government has accepted CDOT’s certification of petitioner as a disadvantaged business enterprise, and has thereby eeased its offending conduct. Voluntary cessation of challenged conduct moots a ease, however, only if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968) (emphasis added). And the “ ‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Friends of Earth, ante, at 189 (emphasis added) (quoting Concentrated Phosphate Export Assn., supra, at 203).
Because respondents cannot satisfy this burden, the Tenth Circuit’s error was a crucial one. As common sense would suggest, and as the Tenth Circuit itself recognized, DOT accepts only “valid certification[s]” from state agencies. 169 F. 3d, at 1298. As respondents concede, however, see Brief in Opposition 13-14, n. 6, DOT has yet to approve — as it must—CDOT’s procedure for certifying disadvantaged business enterprises, see 64 Fed. Reg. 5129 (1999) (49 CFR § 26.21(b)(1)) (“[The State] must submit a [disadvantaged business enterprise] program conforming to this part by August 31, 1999 to the concerned operating administration”).
DOT has promulgated regulations outlining the procedure state highway agencies must follow in certifying firms as disadvantaged business enterprises. See 64 Fed. Reg. 5096-5148 (pt. 26). As described earlier, those regulations require the agency to presume that “women, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian Americans, or other minorities found to be disadvantaged by the [Small Business Administration]” are socially disadvantaged. Id., at 5136 (§ 26.67(a)(1)). Before individuals not members of those groups may be certified, the state agency must make individual determinations as to disadvantage. See id., at 5136-5137 (§ 26.67(d)) (“In such a proceeding, the applicant firm has the burden of demonstrating to [the state highway-agency], by a preponderance of the evidence, that the individuals who own and control it are socially and economically disadvantaged”); id., at 5147-5148 (pt. 26, subpt. D, App. E) (providing list of “elements” that highway agencies must consider in making individualized determinations of social disadvantage). CDOT’s new procedure under which petitioner was certified applies no presumption in favor of minority groups, and accepts without investigation a firm’s self-certification of entitlement to disadvantaged business status. See App. to Pet. for Cert. 109-111. Given the material differences (not to say incompatibility) between that procedure and the requirements of the DOT regulations, it is not at all clear that CDOT’s certification is a “valid certification,” and hence not at all clear that the Subcontractor Compensation Clause requires its acceptance.
Before the Tenth Circuit, respondents took pains to “ex-presé] no opinion regarding the correctness of Colorado’s determination that [petitioner] is entitled to [disadvantaged business] status.” Motion by the Federal Appellants to Dismiss Appeal as Moot and to Vacate the District Court Judgment in No. 97-1304, p. 3, n. 2. Instead, they stated flatly that “in the event there is a third-party challenge to [petitioner’s] certification as a [disadvantaged business enterprise] and the decision on the challenge is appealed to DOT, DOT may review the decision to determine whether the certification was proper.” Id., at 3-4, n. 2. In addition, DOT itself has the power to require States to initiate proceedings to withdraw a firm’s disadvantaged status if there is “reasonable cause to believe” that the firm “does not meet the eligibility criteria” set forth in the federal regulations. 64 Fed. Reg. 5142 (§ 26.87(e)(1)). Given the patent incompatibility of the certification with the federal regulations, it is far from clear that these possibilities will not become reality. Indeed, challenges to petitioner’s disadvantaged business status seem quite probable now that the Tenth Circuit, by vacating Adarand II, has eliminated the sole basis for petitioner’s certification in the first place.
The Tenth Circuit dismissed these possibilities as insufficiently particular and concrete to grant standing and therefore “too conjectural and speculative to avoid a finding of mootness.” 169 F. 3d, at 1298 (internal quotation marks omitted). As we recently noted in Friends of the Earth, however, “[t]he plain lesson of [our precedents] is that there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness.” Ante, at 190. Because, under the circumstances of this case, it is impossible to conclude that respondents have borne their burden of establishing that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” ante, at 189, petitioner’s cause of action remains alive.
* * *
It is no small matter to deprive a litigant of the rewards of its efforts, particularly in a case that has been litigated up to this Court and back down again. Such action on grounds of mootness would be justified only if it were absolutely clear that the litigant no longer had any need of the judicial protection that it sought. Because that is not the case here, the petition for writ of certiorari is granted, the judgment of the United States Court of Appeals for the Tenth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Congress recently enacted the Transportation Equity Act for the 21st Century, Pub. L. 105-178, Tit. I, § 1101(b), 112 Stat. 113, the successor appropriations measure to ISTEA. Although the new Act contains similar provisions, it is technically the provisions of ISTEA that apply to funding obligated in prior fiscal years but not yet expended.
Before the Tenth Circuit, the parties disagreed as to whether the scope of the District Court’s remedial order was appropriate. In characterizing that order as we do here, we do not intend to take a position in that dispute.
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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sc_petitionerstate
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06
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE
No. 76-811.
Argued October 12, 1977
Decided June 28, 1978
Powell, J., announced the Court’s judgment and filed an opinion expressing his views of the case, in Parts I, III-A, and V-C of which White, J., joined; and in Parts I and V-C of which BreNNAN, Marshall, and BlacemuN, JJ., joined. BreNNAN, White, Marshall, and Blace-MUN, JJ., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 324. White, J., post, p. 379, Marshall, J., post, p. 387, and BlackmuN, J., post, p. 402, filed separate opinions. SteveNS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Burger, C. J., and Stewart and RehNQUist, JJ., joined, post, p. 408.
Archibald Cox argued the cause for petitioner. With him on the briefs were Paul J. Mishkin, Jack B. Owens, and Donald L. Reidhaar.
Reynold H. Colvin argued the cause and filed briefs for respondent.
Solicitor General McCree argued the cause for the United States as amicus curiae. With him on the briefs were Attorney General Bell, Assistant Attorney General Days, Deputy Solicitor General Wallace, Brian K. Landsberg, Jessica Dunsay Silver, Miriam R. Eisenstein, and Vincent F. O’Rourke.
Briefs of amici curiae urging reversal were filed by Slade Gorton, Attorney General, and James B. Wilson, Senior Assistant Attorney General, for the State of Washington et al.; by E. Richard Larson, Joel M. Gora, Charles C. Marson, Sanford Jay Rosen, Fred Okrand, Norman Dorsen, Ruth Bader Ginsburg, and Frank Askin for the American Civil Liberties Union et al.; by Edgar S. Cahn, Jean Camper Cahn, and Robert S. Catz for the Antioch School of Law; by William Jack Chow for the Asian American Bar Assn, of the Greater Bay Area; by A. Kenneth Pye, Robert B. McKay, David E. Feller, and Ernest Gellhorn for the Association of American Law Schools; by John Holt Myers for the Association of American Medical Colleges; by Jerome B. Fcdk and Peter Roos for the Bar Assn, of San Francisco et al.; by Ephraim Margolin for the Black Law Students Assn, at the University of California, Berkeley School of Law; by John T. Baker for the Black Law Students Union of Yale University Law School; by Annamay T. Sheppard and Jonathan M. Hyman for the Board of Governors of Rutgers, State University of New Jersey, et al.; by Robert J. Willey for the Cleveland State University Chapter of the Black American Law Students Assn.; by John Mason Harding, Albert J. Rosenthal, Daniel Steiner, Iris Brest, James V. Siena, Louis H. Poliak, and Michael I. Sovem for Columbia University et al.; by Herbert 0. Reid for Howard University; by Harry B. Reese and L. Orin Slagle for the Law School Admission Council; by Albert E. Jenner, Jr., Stephen J. Poliak, Burke Marshall, Norman Redlich, Robert A. Murphy, and William, E. Caldwell for the Lawyers’ Committee for Civil Rights Under Law; by Alice Daniel and James E. Coleman, Jr., for the Legal Services Corp.; by Nathaniel R. Jones, Nathaniel S. Colley, and Stanley Goodman for the National Assn, for the Advancement of Colored People; by Jack Greenberg, James M. Nabrit III, Charles S. Ralston, Eric Schnapper, and David E. Kendall for the NAACP Legal Defense and Educational Fund, Inc.; by Stephen V. Bomse for the National Assn, of Minority Contractors et al.; by Richard B. Sobol, Marian Wright Edelman, Stephen P. Berzon, and Joseph L. Rauh, Jr., for the National Council of Churches of Christ in the United States et al.; by Barbara A. Morris, Joan Bertin Lowy, and Diana H. Greene for the National Employment Law Project, Inc.; by Herbert 0. Reid and J. Clay Smith, Jr., for the National Medical Assn., Inc., et ah; by Robert Hermann for the Puerto Rican Legal Defense and Education Fund et al.; by Robert Allen Sedler, Howard Lesnick, and Arval A. Morris for the Society of American Law Teachers; for the American Medical Student Assn.; and for the Council on Legal Education Opportunity.
Briefs of amici curiae urging affirmance were filed by Lawrence A. Polt-rock and Wayne B. Giampietro for the American Federation of Teachers; by Abraham S. Goldstein, Nathan Z. Dershowitz, Arthur J. Gajarsa, Thaddeus L. Kowalski, Anthony J. Fornelli, Howard L. Greenberger, Samuel Rabinove, Themis N. Anastos, Julian E. Kulas, and Alan M. Dershowitz for the American Jewish Committee et al; by McNeill Stokes and Ira J. Smotherman, Jr., for the American Subcontractors Assn.; by Philip B. Kurland, Daniel D. Polsby, Larry M. Lavinsky, Arnold Forster, Dennis Rapps, Anthony J. Fornelli, Leonard Greenwald, and David I. Ashe for the Anti-Defamation League of B’nai B’rith et ah; by Charles G. Bakaly and Lawrence B. Kraus for the Chamber of Commerce of the United States; by Roger A. Clark, Jerome K. Tankel, and Glen R. Murphy for the Fraternal Order of Police et al.; by Judith R. Cohn for the Order Sons of Italy in America; by Ronald A. Zumbrun, John H. Findley, and William F. Harvey for the Pacific Legal Foundation; by Benjamin Vinar and David I. Caplan for the Queens Jewish Community Council et al.; and by Jennings P. Felix for Young Americans for Freedom.
Briefs of amici curiae were filed by Matthew W. Finkin for the American Assn, of University Professors; by John W. Finley, Jr., Michael Blinick, John Cannon, Leonard J. Theberge, and Edward H. Dowd for the Committee on Academic Nondiscrimination and Integrity et al.; by Kenneth C. McGuiness, Robert E. Williams, Douglas S. McDowell, and Ronald M. Green for the Equal Employment Advisory Council; by Charles E. Wilson for the Fair Employment Practice Comm’n of California; by Mario G. Obledo for Jerome A. Laekner, Director of the Department of Health of California, et ah; by Vilma S. Martinez, Peter D. Roos, and Ralph Santiago Abascal for the Mexican American Legal Defense and Educational Fund et al.; by Eva S. Goodwin for the National Assn, of Affirmative Action Officers; by Lennox S. Hinds for the National Conference of Black Lawyers; by David Ginsburg for the National Fund for Minority Engineering Students; by A. John Wabaunsee, Walter R. Echo-Hawk, and Thomas W. Fredericks for the Native American Law Students of the University of California at Davis et al; by Joseph A. Broderick, Calvin Brown, LeMarquis DeJarmon, James E. Ferguson II, Harry E. Groves, John H. Harmon, William A. Marsh, Jr., and James W. Smith for the North Carolina Assn, of Black Lawyers; by Leonard F. Walentyno-wicz for the Polish American Congress et al.; by Daniel M. Luevano and John E. McDermott for the UCLA Black Law Students Assn, et al.; by Henry A. Waxman pro se; by Leo Branton, Jr., Ann Fagan Ginger, Sam Rosenwein, and Laurence R. Sperber for Price M. Cobbs, M. D., et al.; by John S. Nolan for Ralph J. Galliano; and by Daniel T. Spitler for Timothy J. Hoy.
Mr. Justice Powell
announced the judgment of the Court.
This case presents a challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis, which is designed to assure the admission of a specified number of students from certain minority groups. The Superior Court of California sustained respondent’s challenge, holding that petitioner’s program violated the California Constitution, Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 200Ód et seq., and the Equal Protection Clause of the Fourteenth Amendment. The court enjoined petitioner from considering respondent’s race or the race of any other applicant in making admissions decisions. It refused, however, to order respondent’s admission to the Medical School, holding that he had not carried his burden of proving that he would have been admitted but for the constitutional and statutory violations. The Supreme Court of California affirmed those portions of the trial court’s judgment declaring the special admissions program unlawful and enjoining petitioner from considering the race of any applicant. It modified that portion of the judgment denying respondent’s requested injunction and directed the trial court to order his admission.
For the reasons stated in the following opinion, I believe that so much of the judgment of the California court as holds petitioner’s special admissions program unlawful and directs that respondent be admitted to the Medical School must be affirmed. For the reasons expressed in a separate opinion, my Brothers The Chief Justice, Mr. Justice Stewart, Mr. Justice Rehnquist, and Mr. Justice Stevens concur in this judgment.
I also conclude for the reasons stated in the following opinion that the portion of the court’s judgment enjoining petitioner from according any consideration to race in its admissions process must be reversed. For reasons expressed in separate opinions, my Brothers Mr. Justice Brennan, Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Blackmun concur in this judgment.
Affirmed in part and reversed in part.
I
The Medical School of the University of California at Davis opened in 1968 with an entering class of 50 students. In 1971, the size of the entering class was increased to 100 students, a level at which it remains. No admissions program for disadvantaged or minority students existed when the school opened, and the first class contained three Asians but no blacks, no Mexican-Americans, and no American Indians. Over the next two years, the faculty devised a special admissions program to increase the representation of “disadvantaged” students in each Medical School class. The special program consisted of a separate admissions system operating in coordination with the regular admissions process.
Under the regular admissions procedure, a candidate could submit his application to the Medical School beginning in July of the year preceding the academic year for which admission was sought. Record 149. Because of the large number of applications, the admissions committee screened each one to select candidates for further consideration. Candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. Id., at 63. About one out of six applicants was invited for a personal interview. Ibid. Following the interviews, each candidate was rated on a scale of 1 to 100 by his interviewers and four other members of the admissions committee. The rating embraced the interviewers’ summaries, the candidate’s overall grade point average, grade point average in science courses, scores on the Medical College Admissions Test (MCAT), letters of recommendation, extracurricular activities, and other biographical data. Id., at 62. The ratings were added together to arrive at each candidate’s “benchmark” score. Since five committee members rated each candidate in 1973, a perfect score was 500; in 1974, six members rated each candidate, so that a perfect score was 600. The full committee then reviewed the file and scores of each applicant and made offers of admission on a “rolling” basis. The chairman was responsible for placing names on the waiting list. They were not placed in strict numerical order; instead, the chairman had discretion to include persons with “special skills.” Id., at 63-64.
The special admissions program operated with a separate committee, a majority of whom were members of minority groups. Id., at 163. On the 1973 application form, candidates were asked to indicate whether they wished to be considered as “economically and/or educationally disadvantaged” applicants; on the 1974 form the question was whether they wished to be considered as members of a “minority group,” which the Medical School apparently viewed as “Blacks,” “Chícanos,” “Asians,” and “American Indians.” Id., at 65-66, 146, 197, 203-205, 216-218. If these questions were answered affirmatively, the application was forwarded to the special admissions committee. No formal definition of “disadvantaged” was ever produced, id., at 163-164, but the chairman of the special committee screened each application to see whether it reflected economic or educational deprivation. Having passed this initial hurdle, the applications then were rated by the special committee in a fashion similar to that used by the general admissions committee, except that special candidates did not have to meet the 2.5 grade point average cutoff applied to regular applicants. About one-fifth of the total number of special applicants were invited for interviews in 1973 and 1974. Following each interview, the special committee assigned each special applicant a benchmark score. The special committee then presented its top choices to the general admissions committee. The latter did not rate or compare the special candidates against the general applicants, id., at 388, but could reject recommended special candidates for failure to meet course requirements or other specific deficiencies. Id., at 171-172. The special committee continued to recommend special applicants until a number prescribed by faculty vote were admitted. While the overall class size was still 50, the prescribed number was 8; in 1973 and 1974, when the class size had doubled to 100, the prescribed number of special admissions also doubled, to 16. Id., at 164,166.
From the year of the increase in class size — 1971 — through 1974, the special program resulted in the admission of 21 black students, 30 Mexican-Americans, and 12 Asians, for a total of 63 minority students. Over the same period, the regular admissions program produced 1 black, 6 Mexican-Americans, and 37 Asians, for a total of 44 minority students. Although disadvantaged whites applied to the special program in large numbers, see n. 5, supra, none received an offer of admission through that process. Indeed, in 1974, at least, the special committee explicitly considered only “disadvantaged” special applicants who were members of one of the designated minority groups. Record 171.
Allan Bakke is a white male who applied to the Davis Medical School in both 1973 and 1974. In both years Bakke’s application was considered under the general admissions program, and he received an interview. His 1973 interview was with Dr. Theodore C. West, who considered Bakke “a very desirable applicant to [the] medical school.” Id., at 225. Despite a strong benchmark score of 468 out of 500, Bakke was rejected. His application had come late in the year, and no applicants in the general admissions process with scores below 470 were accepted after Bakke’s application was completed. Id., at 69. There were four special admissions slots unfilled at that time, however, for which Bakke was not considered. Id., at 70. After his 1973 rejection, Bakke wrote to Dr. George H. Lowrey, Associate Dean and Chairman of the Admissions Committee, protesting that the special admissions program operated as a racial and ethnic quota. Id., at 259.
Bakke’s 1974 application was completed early in the year. Id., at 70. His student interviewer gave him an overall rating of 94, finding him “friendly, well tempered, conscientious and delightful to speak with.” Id., at 229. His faculty interviewer was, by coincidence, the same Dr. Lowrey to whom he had written in protest of the special admissions program. Dr. Lowrey found Bakke “rather limited in his approach” to the problems of the medical profession and found disturbing Bakke’s “very definite opinions which were based more on his personal viewpoints than upon a study of the total problem.” Id., at 226. Dr. Lowrey gave Bakke the lowest of his six ratings, an 86; his total was 549 out of 600. Id., at 230. Again, Bakke’s application was rejected. In neither year did the chairman of the admissions committee, Dr. Lowrey, exercise his discretion to place Bakke on the waiting list. Id., at 64. In both years, applicants were admitted under the special program with grade point averages, MCAT scores, and benchmark scores significantly lower than Bakke’s.
After the second rejection, Bakke filed the instant suit in the Superior Court of California, He sought mandatory, injunctive, and declaratory relief compelling his admission to the Medical School. He alleged that the Medical School’s special admissions program operated to exclude him from the school on the basis of his race, in violation of his rights under the Equal Protection Clause of the Fourteenth Amendment, Art. I, § 21, of the California Constitution, and § 601 of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d. The University cross-complained for a declaration that its special admissions program was lawful. The trial court found that the special program operated as a racial quota, because minority applicants in the special program were rated only against one another, Record 388, and 16 places in the class of 100 were reserved for them. Id., at 295-296. Declaring that the University could not take race into account in making admissions decisions, the trial court held the challenged program violative of the Federal Constitution, the State Constitution, and Title VI. The court refused to order Bakke’s admission, however, holding that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program.
Bakke appealed from the portion of the trial court judgment denying him admission, and the University appealed from the decision that its special admissions program was unlawful and the order enjoining it from considering race in the processing of applications. The Supreme Court of California transferred the case directly from the trial court, “because of the importance of the issues involved.” 18 Cal. 3d 34, 39, 553 P. 2d 1152, 1156 (1976). The California court accepted the findings of the trial court with respect to the University's program. Because the special admissions program involved a.racial classification, the Supreme Court held itself bound to apply strict scrutiny. Id., at 49, 553 P. 2d, at 1162-1163. It then turned to the goals the University presented as justifying the special program. Although the court agreed that the goals of integrating the medical profession and increasing the number of physicians willing to serve members of minority groups were compelling state interests, id., at 53, 553 P. 2d, at 1165, it concluded that the special admissions program was not the least intrusive means of achieving those goals. Without passing on the state constitutional or the federal statutory grounds cited in the trial court’s judgment, the California court held that the Equal Protection Clause of the Fourteenth Amendment required that “no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race.” Id., at 55, 553 P. 2d, at 1166.
Turning to Bakke’s appeal, the court ruled that since Bakke had established that the University had discriminated against him on the basis of his race, the burden of proof shifted to the University to demonstrate that he would not have been admitted even in the absence of the special admissions program. Id., at 63-64, 553 P. 2d,, at 1172. The court analogized Bakke’s situation to that of a. plaintiff under Title VII of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000e-17 (1970 ed., Supp. V), see, e. g., Franks v. Bowman Transportation Co., 424 U. S. 747, 772 (1976).. 18 Cal. 3d, at 63-64, 553 P. 2d, at 1172. On this basis, the court initially ordered a remand for the purpose of determining whether, under the newly allocated burden of proof, Bakke would have been admitted to either the 1973 or the 1974 entering class in the absence of the special admissions program. App. A to Application for Stay 48. In its petition for rehearing below, however, the University conceded its inability to carry that burden. App. B to Application for Stay A19-A20. The California court thereupon amended its opinion to direct that the trial court enter judgment ordering Bakke’s admission to the Medical School. 18 Cal. 3d, at 64, 553 P. 2d, at 1172. That order was stayed pending review in this Court. 429 U. S. 953 (1976). We granted certiorari to consider the important constitutional issue. 429 U. S. 1090 (1977).
II
In this Court the parties neither briefed nor argued the applicability of Title VI of the Civil Rights Act of 1964. Rather, as had the California court, they focused exclusively upon the validity of the special admissions program under the Equal Protection Clause. Because it was possible, however, that a decision on Title VI might obviate resort to constitutional interpretation, see Ashwander v. TVA, 297 U. S. 288, 346-348 (1936) (concurring opinion), we requested supplementary briefing on the statutory issue. 434 U. S. 900 (1977).
A
At the outset we face the question whether a right of action for private parties exists under Title VI. Respondent argues that there is a private right of action, invoking the test set forth in Cort v. Ash, 422 U. S. 66, 78 (1975). He contends that the statute creates a federal right in his favor, that legislative history reveals an intent to permit private actions, that such actions would further the remedial purposes of the statute, and that enforcement of federal rights under the Civil Rights Act generally is not relegated to the States. In addition, he cites several lower court decisions which have recognized or assumed the existence of a private right of action. Petitioner denies the existence of a private right of action, arguing that the sole function of § 601, see n. 11, supra, was to establish a predicate for administrative action under § 602, 78 Stat. 252, 42 U. S. C. § 2000d-l. In its view, administrative curtailment of federal funds under that section was the only sanction to be imposed upon recipients that violated § 601. Petitioner also points out that Title VI contains no explicit grant of a private right of action, in contrast to Titles II, III, IV, and VII, of the same statute, 42 U. S. C. §§ 2000a-3 (a), 2000b-2, 2000c-8, and 2000e-5 (f) (1970 ed. and Supp. V).
We find it unnecessary to resolve this question in the instant case. The question of respondent’s right to bring an action under Title VI was neither argued nor decided in either of the courts below, and this Court has been hesitant to review questions not addressed below. McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430, 434-435 (1940). See also Massachusetts v. Westcott, 431 U. S. 322 (1977); Cardinale v. Louisiana, 394 U. S. 437, 439 (1969). Cf. Singleton, v. Wulff, 428 U. S. 106, 121 (1976). We therefore do not address this difficult issue. Similarly, we need not pass upon petitioner's claim that private plaintiffs under Title VI must exhaust administrative remedies. We assume, only for the purposes of this case, that respondent has a right of action under Title VI. See Lau v. Nichols, 414 U. S. 563, 571 n. 2 (1974) (Stewart, J., concurring in result).
B
The language of § 601, 78 Stat. 252, like that of the Equal Protection Clause, is majestic in its sweep :
“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
The concept of “discrimination,” like the phrase “equal protection of the laws,” is susceptible of varying interpretations, for as Mr. Justice Holmes declared, “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U. S. 418, 425 (1918). We must, therefore, seek whatever aid is available in determining the precise meaning of the statute before us. Train v. Colorado Public Interest Research Group, 426 U. S. 1, 10 (1976), quoting United States v. American Trucking Assns., 310 U. S. 534, 543-544 (1940). Examination of the voluminous legislative history of Title VI reveals a congressional intent to halt federal funding of entities that violate a prohibition of racial discrimination similar to that of the Constitution. Although isolated statements of various legislators, taken out of context, can be marshaled in support of the proposition that § 601 enacted a purely colorblind scheme, without regard to the reach of the Equal Protection Clause, these comments must be read against the background of both the problem that Congress was addressing and the broader view of the statute that emerges from a full examination of the legislative debates.
The problem confronting Congress was discrimination against Negro citizens at the hands of recipients of federal moneys. Indeed, the color blindness pronouncements cited in the margin at n. 19, generally occur in the midst of extended remarks dealing with the evils of segregation in federally funded programs. Over and over again, proponents of the bill detailed the plight of Negroes seeking equal treatment in such programs. There simply was no reason for Congress to consider the validity of hypothetical preferences that might be accorded minority citizens; the legislators were dealing with the real and pressing problem of how to guarantee those citizens equal treatment.
In addressing that problem, supporters of Title VI repeatedly declared that the bill enacted constitutional principles. Tor example, Representative Celler, the Chairman of the House Judiciary Committee and floor manager of the legislation in the House, emphasized this in introducing the bill:
“The bill would offer assurance that hospitals financed by Federal money would not deny adequate care to Negroes. It would prevent abuse of food distribution programs whereby Negroes have been known to be denied food surplus supplies when white persons were given such food. It would assure Negroes the benefits now accorded only-white students in programs of high[er] education financed by Federal funds. It would, in short, assure the existing right to equal treatment in the enjoyment of Federal funds. It would not destroy any rights of private property or freedom of association.” 110 Cong. Rec. 1519 (1964) (emphasis added).
Other sponsors shared Representative Celler’s view that Title VI embodied constitutional principles.
In the Senate, Senator Humphrey declared that the purpose of Title VI was “to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation.” Id., at 6544. Senator Ribicoff agreed that Title VI embraced the constitutional standard: “Basically, there is a constitutional restriction against discrimination in the use of federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction.” Id., at 13333. Other Senators expressed similar views.
Further evidence of the incorporation of a constitutional standard into Title VI appears in the repeated refusals of the legislation’s supporters precisely to define the term “discrimination.” Opponents sharply criticized this failure, but proponents of the bill merely replied that the meaning of “discrimination” would be made clear by reference to the Constitution or other existing law. For example, Senator Humphrey noted the relevance of the Constitution:
“As I have said, the bill has a simple purpose. That purpose is to give fellow citizens — Negroes — the same rights and opportunities that white people take for granted. This is no more than what was preached by the prophets, and by Christ Himself. It is no more than what our Constitution guarantees.” Id., at 6553.
In view of the clear legislative intent, Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.
Ill
A
Petitioner does not deny that decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amendment. See, e. g., Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); Sipuel v. Board of Regents, 332 U. S. 631 (1948); Sweatt v. Painter, 339 U. S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950). For his part, respondent does not argue that all racial or ethnic classifications are per se invalid. See, e. g., Hirabayashi v. United States, 320 U. S. 81 (1943); Korematsu v. United States, 323 U. S. 214 (1944); Lee v. Washington, 390 U. S. 333, 334 (1968) (Black, Harlan, and Stewart, JJ., concurring); United Jewish Organizations v. Carey, 430 U. S. 144 (1977). The parties do disagree as to the level of judicial scrutiny to be applied to the special admissions program. Petitioner argues that the court below erred in applying strict scrutiny, as this inexact term has been applied in our cases. That level of review, petitioner asserts, should be reserved for classifications that disadvantage “dis.-crete and insular minorities.” See United States v. Carotene Products Co., 304 U. S. 144, 152 n. 4 (1938). Respondent, on the other hand, contends that the California court correctly rejected the notion that the degree of judicial scrutiny accorded a particular racial or ethnic classification hinges upon membership in a discrete and insular minority and duly recognized that the “rights established [by the Fourteenth Amendment] are personal rights.” Shelley v. Kraemer, 334 U. S. 1, 22 (1948).
En route to this crucial battle over the scope of judicial review, the parties fight a sharp preliminary action over the proper characterization of the special admissions program. Petitioner prefers to view it as establishing a “goal” of minority representation in the Medical School. Respondent, echoing the courts below, labels it a racial quota.
This semantic distinction is beside the point: The special admissions program is undeniably a classification based on race and ethnic background. To the extent that there existed a pool of at least minimally, qualified minority applicants to fill the 16 special admissions seats, white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants. Whether this limitation is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status.
The guarantees of the Fourteenth Amendment extend to all persons. Its language is explicit: “No State shall... deny to any person within its jurisdiction the equal protection of the laws.” It is settled beyond question that the “rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights,” Shelley v. Kraemer, supra, at 22. Accord, Missouri ex rel. Gaines v. Canada, supra, at 351; McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151, 161-162 (1914). The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.
Nevertheless, petitioner argues that the court below erred in applying'strict scrutiny to the special admissions program because white males, such as respondent, are not a “discrete and insular minority” requiring extraordinary protection from the majoritarian political process. Carolene Products Co., supra, at 152-153, n. 4. This rationale, however, has never been invoked in our decisions as a prerequisite to subjecting racial or ethnic distinctions to strict scrutiny. Nor has this Court held that discreteness and insularity constitute necessary preconditions to a holding that a particular classification is invidious. See, e. g., Skinner v. Oklahoma ex ret. Williamson, 316 U. S. 535, 541 (1942); Carrington v. Rash, 380 U. S. 89, 94-97 (1965). These characteristics may be relevant in deciding whether or not to add new types of classifications to the list of “suspect” categories or whether a particular classification survives close examination. See, e. g., Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 313 (1976) (age); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 28 (1973) (wealth); Graham v. Richardson, 403 U. S. 365, 372 (1971) (aliens). Racial and ethnic classifications, however, are subject to stringent examination without regard to these additional characteristics. We declared as much in the first cases explicitly to recognize racial distinctions as suspect:
“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi, 320 U. S., at 100.
“[A] 11 legal restrictions'which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.” Korematsu, 323 U. S., at 216.
The Court has never questioned the validity of those pronouncements. Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.
B
This perception of racial and ethnic distinctions is rooted in our Nation’s constitutional and demographic history. The Court’s initial view of the Fourteenth Amendment was that its “one pervading purpose” was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised dominion over him.” Slaughter-House Cases, 16 Wall. 36, 71 (1873). The Equal Protection Clause, however, was “[virtually strangled in infancy by post-civil-war judicial reaction-ism.” It was relegated to decades of relative desuetude while the Due Process Clause of the Fourteenth Amendment, after a short germinal period, flourished as a cornerstone in the Court’s defense of property and liberty of contract. See, e. g., Mugler v. Kansas, 123 U. S. 623, 661 (1887); Allgeyer v. Louisiana, 165 U. S. 578 (1897); Lochner v. New York, 198 U. S. 45 (1905). In that cause, the Fourteenth Amendment’s “one pervading purpose” was displaced. See, e. g., Plessy v. Ferguson, 163 U. S. 537 (1896). It was only as the era of substantive due process came to a close, see, e. g., Nebbia v. New York, 291 U. S. 502 (1934
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_casetyp1_1-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
UNITED STATES of America, Appellee, v. John D. McGREGOR et al., Appellants.
No. 74-1347.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 11, 1974.
Decided Oct. 7, 1974.
Jack S. Nordby, St. Paul, Minn., for appellants.
Thorwald Anderson, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
Before LAY, ROSS and WEBSTER, Circuit Judges.
ROSS, Circuit Judge.
John D. McGregor, Robert Fletcher, and Fountain Agency, Inc. were each charged in a twenty-six count indictment with the use of the mail for the purpose of executing a scheme to defraud in violation of 18 U.S.C. § 1341. Specifically, the indictment alleged that the defendants, acting as agents for Northland Insurance Co., caused notification of insurance policy cancellations to be sent to Northland for the purpose of obtaining premium refunds from Northland. However, the defendants’ customers, whose policies were cancelled, were never informed of the cancellation. From a verdict finding them guilty of all twenty-six counts, McGregor, Fletcher and Fountain appeal contending that the court erred in denying their motion for transfer to another district and that the evidence was insufficient to establish that they acted with intent to defraud.
During the relevant time period, Fountain Agency, Inc., an insurance agency incorporated in Louisiana, was primarily involved in selling automobile collision insurance, generally on vehicles newly purchased by high risk drivers. The policies were often written by the auto dealer himself acting as Fountain’s subagent and financed together with the purchase price of the auto through finance companies such as General Motors Acceptance Corporation. Fountain, itself, was not the insurer, but merely the agent for several insurance companies, chief among which was Northland Insurance Co., a licensed insurance company in Minnesota.
Fountain had negotiated a retrospective contract with Northland, under the terms of which Fountain earned 80% of the premium and Northland earned 20%. The total premium, however, was forwarded to Northland; the 80% was credited to Fountain’s account at North-land and used as a fund out of which all claims by Fountain’s insureds were paid. After claims adjustment, if the losses did not exceed the agent’s earned premium pool, Northland would refund a pro rata amount of earned premium to Fountain.
These retrospective contracts added to cash flow problems already suffered by Fountain. Not only did Fountain experience a need for revenues to pay operating expenses but it also negotiated collateral contracts with subagents who sold policies under which the subagent, usually the automobile dealer, could retain 20% of the face value of the insurance premium as a commission for the sale of the insurance policy. Fountain thus committed 120% of the premium at the outset.
After it was realized that expanding its business under retrospective contracts did nothing to remedy the cash flow problems, McGregor consulted with other insurance agencies who were also experiencing the same difficulties with retrospective contracts. After consulting with these other agencies and with an employee of the Louisiana Insurance Commission, McGregor determined to undertake a program of cancelling policies without notifying or forwarding refunds to the insured.
Under the plan, notices of cancellation were prepared on arbitrarily selected policies, the originals of which notices were sent to Northland. Copies were prepared for the policyholder and lien-holder, but were not sent. Rather, they mailed other documents to the policyholder and the lienholder by registered mail. Certificates of mailing were obtained for these mailings and sent to Northland with the original of the notice of cancellation as false proof that notices of cancellation had been sent to the policyholder and the lienholder. Northland then refunded to Fountain the prorated unearned portion of the premium on the cancelled policy. In effect, these policies were cancelled to the insuror, but not to the policyholders or lienholders who could still hold North-land primarily liable on the policy since they never received notices of cancellation.
During the periods of cancellation, Fountain paid claims against the can-celled policies out of the refunded premiums. As the cash flow situation improved, Fountain began to rewrite the previously cancelled policies with North-land. Names of the policyholders on the reissued policies were changed slightly so that, as McGregor testified, the computer would not reject the policy application. None of the cancelled premiums were ever refunded to the policyholders. Fountain employees were under instructions to conceal records of these cancellations from Northland representatives. Northland was never reimbursed for its prorata loss of its 20% premium nor for its potential liability under the policy during the period of cancellation. When delays began to develop in Fountain’s ability to pay claims against the can-celled policies and complaints were directed to Northland, the plan came to light.
Motion for Transfer.
The Constitution provides that “The Trial of all Crimes . . . shall be held ip the State where the said Crimes shall have been Committed.” U.S.Const. art. Ill, § 2. The sixth amendment carries a like command. However, Fed.R.Crim.P. 21(b) permits a transfer:
For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him or any one or more of the counts thereof to another district.
This Court has held that the grant of transfer under that rule is a matter of the discretion of the district judge. United States v. Phillips, 433 F.2d 1364 (8th Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971). In reviewing the district court’s exercise of discretion in these matters, we are guided by the enumeration of factors which were considered in Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 243-244, 84 S.Ct. 769, 771, 11 L.Ed.2d 674 (1964):
(1) location of corporate defendant;
(2) location of possible witnesses;
(3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant’s business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district or division involved; and (10) any other special elements which might affect the transfer.
Concerning those factors, the Supreme Court stated that the main office or “home” of the defendant has no independent significance in determining whether transfer to that district would be “in the interest of justice,” although it may be considered with reference to such factors as the convenience of records, officers, personnel and counsel. Id. at 245-246, 84 S.Ct. 769.
18 U.S.C. § 3237(a) provides in part:
Any offense involving the use of the mails ... is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such . . . mail matter moves.
The Supreme Court and other circuits have accordingly held that the government may elect to bring the prosecution in the district where the letter was mailed or where it was delivered. Salinger v. Loisel, 265 U.S. 224, 233-234, 44 S.Ct. 519, 68 L.Ed. 989 (1924); Benson v. Henkel, 198 U.S. 1, 15, 25 S.Ct. 569, 49 L.Ed. 919 (1905); United States v. Sorce, 308 F.2d 299, 300 (4th Cir. 1962), cert. denied, 377 U.S. 957, 84 S.Ct. 1635, 12 L.Ed.2d 500 (1964); Kreuter v. United States, 218 F.2d 532, 534 (5th Cir.), cert. denied, 349 U.S. 932, 75 S.Ct. 777, 99 L.Ed. 1262 (1955); Holdsworth v. United States, 179 F.2d 933, 936 (1st Cir. 1950); Kaufman v. United States, 163 F.2d 404, 411 (6th Cir. 1947), cert. denied, 333 U.S. 857, 68 S.Ct. 726, 92 L.Ed. 1137 (1948); Gates v. United States, 122 F.2d 571, 577 (10th Cir.), cert. denied, 314 U.S. 698, 62 S.Ct. 478, 86 L.Ed. 558 (1941); Johnson v. United States, 59 F.2d 42, 45 (9th Cir.), cert. denied, 287 U.S. 631, 53 S.Ct. 83, 77 L.Ed. 547 (1932). Venue for this crime, then, properly existed in Minnesota, the location of the addressee of the fraudulent mail. To determine whether the appellants were entitled to a transfer from the district for trial, the factors announced in Platt come into play. Here the party defrauded was an insurance company based in Minnesota. The chief government witness was the vice president of Northland. Other North-land witnesses and the postal inspectors involved were from Minnesota. Most of the documents entered into evidence during the trial came from Northland’s office. These factors buttress the trial court’s denial of the motion for transfer. The appellants have failed to demonstrate, as required by United States v. Phillips, supra, 433 F.2d at 1368, that some substantial right.has actually been affected. The motion was properly denied.
Sufficiency of Evidence.
We have recently reiterated the essential elements of a violation of 18 U.S.C. § 1341:
“(1) a scheme conceived by appellant for the purpose of defrauding . by means of false pretenses, representations or promises, and (2) use of the United States mails in furtherance of the scheme.” “Scheme” to defraud within the purview of this section involves some connotation of planning and pattern. Thus, intent to defraud is an essential element. It may be inferred by all the facts and circumstances surrounding a transaction. [Additionally] ... to bring the scheme within the ambit of the mail fraud statute, the mails must be used for the purpose of executing the scheme, . . . must be employed before the scheme reaches fruition, . . . yet, need not be contemplated as an essential element of the scheme.
United States v. Nance, 502 F.2d 615, 618 (8th Cir. 1974). The appellants concede that there is no doubt here that the mails were in fact employed and that this use of the mails was an integral part of the activity which the government alleged to be fraudulent. They do, however, contend that the first requisite was not met on this record. They maintain that because McGregor consulted the Louisiana Insurance Commission, because he received advice from other agencies undergoing similar difficulties, and because Fountain paid all claims against the cancelled policies during the periods of cancellation, they did not have the requisite intent to defraud.
In reviewing the sufficiency of the evidence, we note that the verdict must be sustained if there is substantial evidence, taking the view most favorable to the' government to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). United States v. Madden, 482 F.2d 850, 851 (8th Cir. 1973). The district court made clear in its instructions to the jury that specific intent to defraud was essential to a finding of guilt. Given the proper instructions of the district court and the scope of review, we find that there was sufficient evidence of covert conduct which could permit the jury to determine that the appellents acted with the requisite intent to deceive both Northland and the policyholders. Policyholders were never informed of the cancellation. Office personnel were instructed to conceal the cancellation practice from Northland representatives. At the outset the substitution of other documents for the cancellation notices was effectuated by McGregor in the privacy of a closed office without informing office personnel of the procedure. North-land was never reimbursed for its potential risk during the period of cancellation. Names were altered on reissued policies so that a computer would not detect the prior cancellations. Fountain, while paying claims against cancelled policies acted as an insurance company, an enterprise for which it was not licensed and could not meet capitalization requirements. Given this evidence, resolved in the light most favorable to the verdict, it is clear that the jury, as properly instructed, found that the appellants had specific intent to defraud.
For the reasons hereinbefore expressed, the judgment of conviction is affirmed.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer:
|
songer_crmproc1
|
48
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited.
UNITED STATES of America, Appellee, v. John Christopher DOYLE, Appellant.
No. 556, Docket 29750.
United States Court of Appeals Second Circuit.
Argued June 10, 1965.
Decided June 28, 1965.
Certiorari Denied Oct. 11, 1965.
See 86 S.Ct. 89.
Abram Chayes, Washington, D. C. (David Goldstein, Jacob D. Zeldes, Bridgeport, Conn., Arthur H. Christy, Carl F. Trunk, Jr., New York City, on brief), for appellant.
Herbert Edelhertz, New York City (Jon Newman, U. S. Atty., for the District of Connecticut, Victor C. Woerheide, Doris R. Williamson, Joseph Shortall, Attys., Washington, D. C.), for appellee.
Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.
FRIENDLY, Circuit Judge.
On July 2, 1962, a grand jury in the District Court for Connecticut filed an eleven-count indictment against appellant Doyle and three other defendants, Sherwood, Berman, and Korn, charging violations of the Securities Act of 1933 in connection with the offer and sale of stock of Canadian Javelin, Ltd. Counts 1, 2 (dismissed on the Government’s motion independently of the proceedings later recounted), 6, 7, 8, 9 and 10 alleged use of the mails in the fraudulent or manipulated advertising or sale of securities in violation of 15 U.S.C. § 77q at various dates between July and late September, 1957. Counts 3, 4 and 5 charged use of the mails to sell unregistered shares of Canadian Javelin on July 10, 23, and 31, 1957, in violation of 15 U.S.C. § 77e(a). Count 11 charged a conspiracy to defraud the United States by impeding the SEC in protecting investors and to violate 15 U.S.C. §§ 77e(a) and 77q. The conspiracy was alleged to have begun prior to January 1, 1955 and to have continued until about July 1, 1958; the overt acts were those forming the basis for the ten substantive counts plus ten others, the last on September 27, 1957.
On the Government’s request the indictment was immediately ordered to be impounded. Although the reason was not of record, there is no dispute that it was because Sherwood and Berman were outside the United States and the Government feared that disclosure would prevent a return which otherwise might shortly occur. The Government states its initial intention was to continue the impounding only for a few months. However, in late August, 1962, a Washington attorney, now deceased, called at the Department of Justice and presented papers purporting to show that the SEC had entered into an agreement with a New York lawyer, also representing Doyle, “which was inconsistent with any prosecution of defendant Doyle in connection with the distribution or sale of the stock of Canadian Javelin, Ltd., prior to July 1, 1958.” The Department began a detailed inquiry into this alleged agreement, which lasted for many months.
The indictment remained impounded, the reason for the continuation of this beyond early September, 1962, being, according to the Department, the necessity of resolving the issue of the alleged commitment by the SEC which Doyle had raised. About April 16, 1963, the Department made a determination to proceed with the prosecution, and on April 22, on motion of the Government, Judge Anderson ordered that the indictment be released on April 24. The Department having courteously informed a second New York lawyer representing Doyle that a decision had been made to go forward, he and the two previously mentioned made telephone calls to the Department which, as said in the affidavit of the Chief of the Fraud Section, “initiated a chain of events leading to the Government’s request” that the indictment remain impounded, as it did until August 6, 1963. Appellant concedes that “from April 23, 1963 to August 6, 1963, when the indictment was unsealed, the delay in unsealing was at the request of Mr. Doyle or his attorneys.” Although the Government does not allege a similar express request prior to April 23, 1963, it claims, quite reasonably, to have thought that release of the indictment would have been at odds with the investigation it was conducting at Doyle’s instance, and the second New York attorney conceded, in an affidavit to the district court, “in candor I must also say that by presenting the Department with evidence of a commitment I hoped they would hold up whatever it was they were doing, that is, if they were still considering prosecution that they give up the idea or if there was an indictment, that it be dismissed.”
After making various motions Doyle pleaded not guilty to all counts, as the other defendants also did. All moved, pursuant to F R.Cr.P. 12(b), that the indictment be dismissed on the grounds that, because of the long impounding, the prosecution was barred by the five-year statute of limitations, 18 U.S.C. § 3282, they had been denied the right to a speedy trial guaranteed by the Sixth Amendment, and there had been unnecessary delay in bringing them to trial within F.R.Cr.P. 48(b). Judge Clarie granted the motions of Sherwood, Berman and Korn, because of the long delay in unsealing the indictment after the fall of 1962 for reasons unrelated to the prompt obtaining of custody, see F.R.Cr.P. 6(e). However, the court denied Doyle’s motion, finding that the sealing of the indictment from July 2 to August 23, 1962, to obtain custody of Sherwood and Berman was reasonable and that thereafter “the continued sealing was materially contributed to and caused by the defendant’s own efforts.”
During the fall and winter of 1964, many further motions relating to Doyle were decided. At a pretrial hearing on February 2, 1965, Judge Clarie announced he reluctantly would grant a request by Doyle, consented to by the Government, for an adjournment until the next day to enable counsel to agree on certain dates on which the evidence would be focused, “with the understanding that there will be no further continuance in this case for any reason whatsoever.” When counsel appeared the next morning, Doyle’s trial counsel, a Connecticut attorney of wide experience, announced “there is going to be a change of plea in our case, John Doyle. We would like to change the plea.” After interrogating Doyle, Judge Clarie inquired whether “the defendant is to be put to plea on all counts?” The United States Attorney responded that the changed plea was to be only to Count 4, relating to a sale of 50 unregistered shares on July 23, 1957, and that “the Government will address itself to the remaining counts at the time of disposition.” After further allocution, the judge authorized withdrawal of the not guilty plea on Count 4 and Doyle pleaded guilty on that count. The court asked “what comment does counsel care to make concerning a trial of the remaining counts of the indictment,” the United States Attorney responded with the same formula as before, the court inquired whether this meant that “the Government contemplates a dismissal or nolle of the remaining counts,” and the prosecutor answered “Yes.”
On May 3, Doyle appeared for sentence. After extended argument by his attorneys, of which more hereafter, the judge sentenced him to pay a $5,000 fine and to be committed to the custody of the Attorney General for three years, with execution of the prison sentence to be suspended after three months. The Government then moved to dismiss the remaining counts, and this was granted. At his attorneys’ request Doyle was given until May 24 to arrange his affairs. On May 12 he filed a notice of appeal to this court, and also moved in the district court for modification of his sentence. At a hearing on May 17, the judge denied motions for leave to see the probation report and for bail pending the appeal; the motion for modification of sentence was not pressed because of the appeal. Later this court denied a motion by the Government to dismiss the appeal as frivolous and granted bail, but set an expedited schedule for hearing.
The points sought to be raised on appeal, where still another attorney represented Doyle at argument, fall into two categories. One concerns the delay in unsealing the indictment, under the not unrelated rubric of the five-year statute of limitations, 18 U.S.C. § 3282, and the provisions of the Sixth Amendment and F.R.Cr.P. 48(b) as to speedy trial. The other goes to matters concerning sentence. We do not believe the substantive questions in the first category can be reached. And even if we were to make the assumption — in all likelihood unduly charitable — that the claims with respect to sentence, if established, would fall within the narrow range where a federal appellate court may direct resentence, see United States v. Wiley, 267 F.2d 453 (7 Cir. 1959), we find not the slightest merit in those here asserted.
I.
The cases are legion that “[a] plea of guilty to an indictment is an admission of guilt and a waiver of all non — jurisdictional defects.” United States v. Spada, 331 F.2d 995, 996 (2 Cir.), cert. denied, 379 U.S. 865, 85 S.Ct. 130, 13 L.Ed.2d 67 (1964), and cases cited; United States ex rel. Boucher v. Reincke, 341 F.2d 977, 980-981 (2 Cir. 1965). Although failure of the indictment to charge an offense may be treated as jurisdictional, United States v. Cook, 84 U.S. (17 Wall.) 168, 21 L.Ed. 538 (1872), held that an indictment states an offense even though the crime alleged appears to be barred by limitation. In United States v. Parrino, 203 F.2d 284, 286-287 (2 Cir. 1953), this court, speaking through Judge Learned Hand, applied the Cook case so as to prevent relitigation of the issue of limitations after a plea of guilty. Pate v. United States, 297 F.2d 166 (8 Cir.), cert. denied, 370 U.S. 928, 82 S.Ct. 1569, 8 L.Ed.2d 507 (1962), followed the same rule with respect to a claim of denial of speedy trial in violation of the Sixth Amendment. We recognize that the Criminal Rules contemplate that the issue of speedy trial may be raised by pretrial motion, F.R.Cr.P. 48(b), and that a few courts have allowed limitations questions to be considered under Rule 12(b) (1) before trial, e. g., United States v. Zavin, 190 F.Supp. 393 (D.N.J.1961). In our view, the effect of a plea of guilty does not depend on whether an issue sought to be pressed on appeal or in collateral attack might have been, or was in fact, properly raised in advance of trial. An unqualified plea of guilty, legitimately obtained and still in force, bars further consideration of all but the most fundamental premises for the conviction, of which the subject — matter jurisdiction of the court is the familiar example. The claims here asserted have nothing of this quality.
Appellant argues that this rule runs counter to sound principles of judicial administration since, if a defendant is willing to rely on his ability to convince an appellate court of the validity of his rejected claims as to delay, a trial on the merits ought not be required. The premise is sound enough but the conclusion does not follow. There are a number of ways to deal sensibly with such a case without departing from the principle of Parrino. A plea expressly reserving the point accepted by the court with the Government’s consent or a stipulation that the facts are as charged in the indictment are two; failing either of these, the defendant can simply stand on his not guilty plea and put the Government to its proof without developing a case of his own.
Doyle contends that however the matter might otherwise stand, a conclusion favorable to him is compelled by Jaben v. United States, where the Eighth Circuit permitted the defendant who had pleaded nolo contendere to assert on appeal a claim of limitations as to which the district court had denied a motion to dismiss, 333 F.2d 535 (8 Cir. 1964), and the Supreme Court affirmed the conviction without discussion of the point, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965); indeed, Doyle’s appellate counsel urged in argument that the Government must have conceded this in the Supreme Court. The contention is rather swiftly answered by examination of the record — which was not brought to our attention by counsel for either side. For this shows that Jaben pleaded nolo on the express condition “that the defendant will then have an opportunity to have the question as to whether the said count is barred by the statute of limitations decided upon by the Eighth Circuit Court of Appeals or by the Supreme Court, and that the plea of nolo contendere is not to preclude the defendant from taking an appeal on the issue at that time.” It is thus unnecessary to consider the other possible grounds of distinction which the Government needlessly urged.
Moreover, even if Cook and Parrino do not mean what we think they mean, we would nevertheless decline to consider Doyle’s limitation and Sixth Amendment claims on the facts of this case. Even if such claims are not waived by pleas of guilty simpliciter, a defendant advised by counsel can agree so to waive them, and the circumstances compel the conclusion that Doyle did precisely that.
A few more facts round out the picture. On the day of sentence, Doyle’s trial counsel began by recalling that “as you well know, there was plenty of activity before the accused entered a plea of guilty to the Fourth Count. And every effort was made to avoid any record, which resulted in this conviction. However, that is beside the point now; the matter has been disposed of, and he has a record of conviction on that Fourth Count.” Counsel went on to explain that the indictment had “simmered down to one count * * * as a result of a statement, caused by a question propounded by your Honor to the District Attorney, as to what disposition would be made of the other counts. And it was agreed that they would be dismissed after this matter was disposed of.” He reiterated “there was plenty of skirmishing before he entered his plea on the technical violation, and it is a conviction that will stand against him for the rest of his life.” After telling the court about Doyle, the attorney continued, “The conviction itself is a sad thing for him. We tried every way, until finally he agreed to enter a plea, of his own free will and accord, to that Fourth Count, which will stand against him for the remainder of his days.” Counsel concluded by stating that he and other counsel had “tried to represent him [Doyle] to the best of our ability” and “We think this was the best disposition, to do what we did. We stand by it * * * ”
The Government, and the judge, had every reason to consider that this presentation, taken in the light of all the circumstances, waived any right of appeal from the denial of the motions to dismiss on the score of the very issues stated to be “beside the point now.” It is inconceivable that the Government would have moved for dismissal of nine counts of the indictment it had been pressing for trial, some of which related to crimes of a date later than Count 4, if it had any notion that Doyle would shortly be urging that the conviction, represented to the court as one “that will stand against him for the rest of his life,” would stand only for a few months. The imposition of a prison sentence, short as it was, obviously came as a most unpleasant surprise to Doyle and his lawyers. Yet when counsel then requested that execution of sentence be stayed briefly, there was no suggestion of any appeal. Rather, when Judge Clarie asked the reason for a stay, counsel replied, “Well, your Honor, we have got to make some preparations. As you know, this man is involved in many things, and I think that is a fair request * * * ” Although we could remand for the taking of evidence and for findings as to an agreement, we think the record speaks for itself so clearly that no further delay should be brooked.
In disposing of this branch of the case as we do, we would not wish to be understood as implying disagreement with the judge’s denial of the motion to dismiss. Like him we find little attractiveness in Doyle’s now seeking to take advantage of the failure of the Department of Justice, when yielding to his entreaties that it investigate his claims of immunity, to exact an express waiver which, as shown by the subsequent conduct of his attorney, he would almost certainly have given. We simply do not reach the issue, for reasons here explained.
II.
The prison sentence of three years, with execution suspended after serving three months, and probation for a year must be conceded to be modest as compared with the five-year maximum allowed by 15 U.S.C. § 77x. Although Doyle’s trial counsel chose to call the failure to register a “technical violation,” counsel can hardly be unaware of the close connection between a wilful failure to register securities and their fraudulent sale, which this court has often pointed out, United States v. Crosby, 294 F.2d 928, 944-945 (2 Cir. 1961), cert. denied, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962); United States v. Benjamin, 328 F.2d 854, 864 (2 Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1631, 12 L.Ed.2d 497 (1964). The principal attack is that, before passing sentence, the court said, “Now counsel has well-stated * * * that we are concerned directly with 50 shares of stock. But the Probation Officer's report also indicates that this failure to register permitted the sale to many thousands of persons, of several millions of shares — two and a half, I think, millions of shares of stock, without the registration statement having been filed.” After sentence had been pronounced, trial counsel suggested there might be “some correction that could be made about those two and one half million shares” and sought an opportunity to talk to Doyle about that. Judge Clarie said that this “wouldn’t have that much bearing on the matter,” that it was inconsequential “whether it was one million, or half a million,” that “It is not a question of 50 shares of stock alone that the Court has considered. The lack of registration is the important and paramount factor.” When the point was again pressed at the proceedings on May 17, the judge asked Doyle’s New York attorney what he claimed was the correct figure of United States sales of unregistered shares for which Doyle was responsible. The attorney said his “only answer” was “that Mr. Doyle pleaded guilty to Count Four of the indictment, which charged him with fifty shares.” The judge properly characterized this as evasive. The brief and argument for Doyle in this court were no more informative.
Doyle’s basic contentions respecting ¿hese events appear to be two: that the stock transactions covered by other counts of the indictment and beyond it should not have been considered; and that, in any event, the sentence rests on an inaccurate exaggeration of the scope of those activities.
On the first point, Doyle disclaims, as he must, any contention “that the court is strictly limited, in imposing sentence, to the framework of a count upon which a defendant is found guilty.” What remains of the argument after the disclaimer is not clear. The narrowing of the indictment to a single count limits the maximum punishment the court can impose but not the scope of the court’s consideration within the maximum. The dismissal of the other counts at the Government’s request was not an adjudication against it on the merits, even though, as a result of the statute of lim-tations, no further prosecution can occur for the oifenses there charged. The aim of the sentencing court is to acquire a thorough acquaintance with the character and history of the man before it. Its synopsis should include the unfavorable, as vivell as the favorable, data, and few things could be so relevant as other criminal activity of the defendant, particularly activity closely related to the crime at hand. Counsel suggests that although a “criminal record” may be considered, crimes not passed on by a court are beyond the pale, but we see nothing to warrant this distinction. Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Of necessity, much of the information garnered by the probation officer will be hearsay and will doubtless be discounted accordingly, but the very object of the process is scope and the defendant is always guarded by the statutory maximum. To argue that the presumption of innocence is affronted by considering unproved criminal activity is as implausible as taking the double jeopardy clause to bar reference to past convictions. See Williams v. State of Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959). Indeed, Doyle’s protests are almost ludicrous as applied to the present facts. The Government was ready to proceed on all the counts; simply by adhering to his former plea Doyle could have had a public trial where he could dispute all the Government’s charges, and fully preserve the points dealt with in Part I of this opinion as well. It was he, on the advice of many highly sophisticated counsel, who avoided airing of the facts by a guilty plea.
Doyle’s second criticism of the sentence, concerning an alleged error as to the number of shares sold, is equally without merit. We begin with grave doubts that the point deserves any consideration in view of the persistent failure of Doyle’s attorneys to suggest another figure or even to explain precisely how the trial judge’s figure is challenged; we cannot imagine that even a very sizable reduction from two and one half million would seriously alter a trial judge’s picture of the distribution as a large— scale enterprise. The silence on this score could well be the basis for inferring that Judge Clarie was not seriously mistaken and strongly suggests that any figure counsel could support would be sufficiently large that the differences would be of no consequence.
Even if Doyle could show that the judge was mistaken by several orders of magnitude, no grounds for reversal would exist. For the trial judge, while quite properly indicating that more was at stake than a sale of fifty shares of stock, expressly emphasized that no great weight was given to the particular number of shares and that failure to register was the significant consideration. Doyle was a business man of experience, dealing in stock of his own enterprise, and said to be fully familiar with the registration requirement; there is not the slightest reason to doubt that the trial judge meant what he said in specifying the basis for his sentence. To cite decisions like Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), as requiring reversal is incongruous. There a defendant who neither received nor waived the assistance of counsel was given a substantial sentence after the trial judge recited and remarked on a record of past offenses, of which just under half turned out to be not convictions but acquittals. The principle stated by Mr. Justice Jackson was “that the disadvantage from absence of counsel, when aggravated by circumstances showing that it resulted in” actual disadvantage or prejudice violated due process, and the Justice emphasized how counsel might have redressed the false assumptions of the sentencing judge. Doyle was possessed of a large force of lawyers who were given ample opportunity to correct any misapprehension.
The judgment is affirmed. Since execution of this sentence has already been too long delayed, we direct that the mandate issue five days from the filing of this opinion.
. It should be noted that on August 23, 1962, the statute of limitations had not run on Counts 9, 10 and 11 (the conspiracy count).
. We reject as not meriting discussion a claim that Count 4 did not charge an offense. See McDaniel v. United States, 343 F.2d 785 (5 Cir. 1965).
. Although United States v. Harris, 133 F.Supp. 796 (W.D.Mo.1955), aff’d on other grounds, 237 F.23 274 (8 Cir. 1956), would confine the rule that a plea of guilty eliminated the issue of limitations to cases where, as in Parrino, the prosecution might be able to bring itself within an exception to the statute, this appears inconsistent with the language in United States v. Cook, supra, 84 U.S. (17 Wall.) at 180, and with the thrust of Judge Hand’s decision in Parrino. We also note that a variance between the pleaded date and the proof at trial is normally permitted for limitations purposes, unless actual prejudice would be worked upon the defendant. United States v. Perlstein, 126 F.2d 789, 798 (3 Cir.), cert. denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942); see Ledbetter v. United States, 170 U.S. 606, 612-613, 18 S.Ct. 1774, 42 L.Ed. 1162 (1898). In any event Harris cannot aid appellant since the indictment here was timely on its face.
. Although it is doubtful that the Government would agree to dismiss the remaining counts of a multi-count indictment after such a qualified plea to a single count, this only reinforces our conclusion, for reasons elaborated below.
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_numresp
|
7
|
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.
Kurt J. LINDNER, Edith Lindner; St. Joseph Hospital of Kirkwood; Admiral Insurance Agency; Lindner Fund, Inc.; Petty & Company; Landmark Central Bank & Trust Company, Appellants, v. DURHAM HOSIERY MILLS, INC.; George A. Cralle; H.E. Schoenhut, Jr.; W.K. Bigelow; H.E. Rodenhizer; W.C. Spann and John P. Barnett, individually, Appellees.
No. 84-1593.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 10, 1985.
Decided May 6, 1985.
William Woodward Webb, Raleigh, N.C. (Broughton, Wilkins & Webb, P.A., Raleigh, N.C., Kevin P. Roddy, Smith, Tag-gart, Gibson & Albro, Charlottesville, Va., on brief), for appellants.
G. Eugene Boyce, Raleigh, N.C. (Susan K. Burkhart, Boyce, Mitchell, Burns & Smith, P.A., Raleigh, N.C., on brief), and L. Bruce McDaniel, Raleigh, N.C. (DeBank, McDaniel, Heidgard & Holbrook, Raleigh, N.C., on brief), for appellees.
Before RUSSELL and CHAPMAN, Circuit Judges and HAYNSWORTH, Senior Circuit Judge.
CHAPMAN, Circuit Judge:
This appeal arises out of the merger and reorganization of Durham Hosiery Mills, Inc. (Durham Hosiery), a North Carolina corporation, into DHM, Inc., a Virginia corporation, on January 15, 1981. The plaintiffs brought this diversity action alleging that the defendants had deprived them of the fair market value of their stock by virtue of a reverse stock split accomplished as a part of the merger. The plaintiffs appeal from the decision of the district court dismissing their claim for relief under the North Carolina Unfair Trade Practices Act, N.C.Gen.Stat. § 75-1.1 (1981), and denying their motion for a new trial on their claim for breach of fiduciary duty. We affirm.
I
The plaintiffs are former minority shareholders who owned Class B nonvoting stock in Durham Hosiery. All of the plaintiffs are citizens and residents of the State of Missouri. Defendant Durham Hosiery was a hosiery manufacturer incorporated in North Carolina with plants located, at one time, in both North Carolina and Virginia. Defendants Bigelow, Rodenhizer, and Spann were directors of Durham Hosiery.
In August 1980 a New York stockbroker contacted the president of Durham Hosiery, defendant George Cralle, and offered him a large block of stock. The broker was asking $7 a share for the Class B stock and $12 a share for the Class A stock. Cralle contacted John P. Barnett, an acquaintance who had negotiated the sale of the Danville plant to Durham Hosiery, and offered him the opportunity to acquire this block of stock.
After many discussions, Barnett authorized Cralle, who had personally dealt with the New York stockbroker, to negotiate the purchase of the Durham Hosiery stock. On November 7, 1980, Barnett purchased through Cralle 25,705 shares of Class B and 2,483 shares of Class A stock from the New York stockbroker. Because the number of outstanding Durham Hosiery shares was 71,101, this transaction represented a purchase by Barnett of 40 percent of the company’s stock. The majority of the company’s shares was owned by Cralle and Harry S. Schoenhut, the vice president of Durham Hosiery.
Cralle and Schoenhut had been employees of Durham Hosiery for 28 years and 13 years, respectively. Before these transactions occurred, the Board of Directors of Durham Hosiery had discussed and concluded that the company would provide retirement benefits for Cralle and Schoenhut. When Barnett began acquiring stock in Durham Hosiery and reorganization discussions began, Cralle requested that Barnett honor the company’s obligation to fund the retirement plans that he and Schoenhut had anticipated. Barnett agreed that after the merger Schoenhut would receive deferred compensation of $500,000 for consulting services to the corporation. Cralle received similar assurances, and also an option to sell to Barnett his shares of Durham Hosiery. By the time of the merger, Barnett had accumulated a majority of the Durham Hosiery stock.
After Cralle and Barnett discussed their intentions for the reorganization of Durham Hosiery, Barnett arranged a meeting with attorney Frederick R. Russell. Russell advised Barnett and Cralle to reduce substantially the number of Durham Hosiery shareholders to enable the company to raise one million dollars of working capital through personal guarantees. Russell also recommended that Durham Hosiery eliminate nonvoting stock. Finally, they agreed to a plan by which those shareholders interested in remaining in the corporation had to accumulate 4,500 shares in the old corporation to acquire one share in the new corporation. The new corporation would have only 16 shares of stock. Holders of fewer than 4,500 Durham Hosiery shares were either to purchase sufficient shares to bring the total to 4,500, or to sell their shares at a price determined by bids received by the corporation from holders seeking more shares.
Durham Hosiery mailed to its shareholders a Proxy Statement and other documents, prepared by Russell, containing descriptions of the proposed merger and reorganization. According to the Proxy Statement, shareholders objecting to the merger could dissent and seek appraisal of and payment for their shares in the corporation by complying with the “Virginia Stock Corporation Act (or the similar provi sion of North Carolina law).” Cralle read the documents and signed the Proxy Statement.
On December 22, 1980, the Board of Directors of Durham Hosiery voted unanimously in favor of the plan for reorganization and merger. At a special meeting on January 12, 1981, the Durham Hosiery shareholders approved the merger by an affirmative vote of 80 percent or more of each class of outstanding stock. The plaintiffs dissented from the proposed merger and reorganization, executing their proxies on December 27, 1980. The Articles of Merger of Durham Hosiery Mills and DHM, Inc. were filed with the Secretary of State of North Carolina on January 15, 1981, and the merger was effected.
On January 19, 1981, Durham Hosiery sent a letter to the plaintiffs and other Durham Hosiery shareholders explaining that the merger had been overwhelmingly approved and that the merger was effective. The letter, signed by Cralle, also instructed the shareholders to execute an enclosed form for disposing of fractional interests in the stock and requested return of the stock certificates in accordance with the plan for payment. The plaintiffs did not respond to this letter. On February 23, 1981, Durham Hosiery sent another letter to the plaintiffs instructing them to submit their stock certificates in order to receive $7 per share of stock. The plaintiffs again failed to submit their stock certificate for payment.
In April 1981 the plaintiffs filed an action in the Wake County Superior Court of North Carolina seeking a determination of the fair value of Durham Hosiery stock. This state appraisal action was pending on December 23, 1981, when the plaintiffs filed the present action for damages in the district court. That action is still pending in the North Carolina state court.
In this action the plaintiffs alleged causes of action for (1) violations of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982), and Security Exchange Commission (SEC) Rule 10b-5, 17 C.F.R. 240.10b-5 (1984); (2) constructive fraud; (3) breaches of fiduciary duty; (4) violations of the North Carolina Securities Act, N.C.Gen.Stat. § 78A-56(b) (1981); (5) unfair or deceptive acts or practices in violation of N.C.Gen.Stat. § 75-1.1 (1981); and (6) violations of the North Carolina Dissenters’ Rights Statute, N.C.Gen.Stat. §§ 55-108, 113 (1981). In two separate memoranda opinions the district court dismissed all of the plaintiffs’ claims except their claim for breach of fiduciary duty. On January 12, 1984, the plaintiffs amended their complaint to allege a cause of action under the civil damages provision of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961—68 (1982).
After twelve days of testimony the jury found that the defendants had not committed a breach of fiduciary duty and that they had not violated the provisions of the RICO Act. The district court denied the plaintiffs’ motion for a new trial and entered judgment in accordance with the jury’s verdict. This appeal followed.
II
The first issue presented is whether N.C.Gen.Stat. § 75-1.1 applies to securities transactions. The plaintiffs argue that the defendants’ conduct constituted an unfair or deceptive act or practice in violation of § 75-1.1. The district court dismissed this claim and held that “the instant merger transaction does not fall within the scope of N.C.Gen.Stat. Sec. 75-1.1.” It stated that § 75-1.1 “is directed toward misrepresentation and shady practices sometimes associated with the marketing of goods and services, and that the deterrent of such practices for the protection of the general public is the reason that ... [§] 75-16 entitled the person injured by such acts to treble damages.” The district court reasoned that § 75-1.1 has no application to a securities fraud case involving a corporate merger because such an application is inconsistent with the purpose behind the enactment of § 75-1.1.
Because the North Carolina Unfair Trade Practices Act does not refer to securities transactions and the North Carolina courts have not addressed this issue, we must ascertain what the North Carolina Supreme Court would decide if confronted with this question. Our inquiry is guided by the purpose behind § 75-1.1, the North Carolina cases limiting the scope of § 75-1.1, other state cases construing similar statutes, and the scope of § 5 of the Federal Trade Commission (FTC) Act, 15 U.S.C. § 45(a)(1) (1982).
Section 75-l.l(a) declares that “[ujnfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are ... unlawful.” There are only two express exclusions contained in the statute. Subsection (b) excludes professional services rendered by a member of a learned profession. Subsection (c) excludes the advertising media when the owner, agent or employee who published the material did not have knowledge of the false, misleading or deceptive character of the advertisement and did not have a direct financial interest in the sale or distribution of the advertised product or service. This Court previously has observed that the “prohibitory scope of the North Carolina [Unfair Trade Practices Act] ... is potentially quite broad.” ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 48 n. 10 (4th Cir.1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984) (citing Atlantic Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712, 716-17 (4th Cir.1983)). Nevertheless, the scope of § 75-1.1 is not unlimited.
The apparent purpose behind the enactment of § 75-1.1 was the protection of the consuming public. In Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981), the North Carolina Supreme Court stated:
In an area of law such as this, we would be remiss if we failed to consider also the overall purpose for which this statute was enacted. The commentators agree that state statutes such as ours were enacted to supplement federal legislation, so that local business interests could not proceed with impunity, secure in the knowledge that the dimensions of their transgression would not merit federal action.
Id. at 549, 276 S.E.2d at 403. The North Carolina Supreme Court also stated that “[i]n enacting [§ 75-1] and [§ 75-1.1], our Legislature intended to establish an effective private cause of action for aggrieved consumers in this State” because “common law remedies had proved often ineffective.” Id. at 543, 276 S.E. at 400. Moreover, the commentators agree that the North Carolina Unfair Trade Practices Act grew out of antitrust laws in an effort to protect the consuming public from anticompetitive business practices. See Morgan, The Peo-pie’s Advocate in the Marketplace — The Role of the North Carolina Attorney General in the Field of Consumer Protection, 6 Wake Forest L.Rev. 1, 12 (1969). The North Carolina Supreme Court’s discussion of the purpose behind § 75-1.1, although not dispositive of this case, gives some guidance on the potential scope of that section.
Two North Carolina eases have limited the potential scope of § 75-1.1. In Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C.App. 414, 248 S.E.2d 567 (1978), cert. denied, 296 N.C. 583, 254 S.E.2d 32 (1979), the North Carolina Court of Appeals held that commodities transactions are not within the ambit of § 75-1.1. The court held that the “pervasive” federal scheme for regulating commodities transactions militated against finding a state cause of action under § 75-1.1. The court also recognized that a finding that one party’s conduct violated § 75-1.1 would expose it to a host of legislatively created sanctions in addition to those sought in the suit. Based on these concerns, the court held that “Congress has clearly expressed its intent to exercise exclusive jurisdiction over the activity of the commodity exchanges and has provided elaborate administrative procedures for the redress of grievances” pursuant to the Commodity Exchange Act, 7 U.S.C. § 1 et seq. (1976). 38 N.C.App. at 418, 248 S.E.2d at 570.
Similarly, in Buie v. Daniel International Corp., 56 N.C.App. 445, 289 S.E.2d 118 (1982), cert. denied, 305 N.C. 759, 292 S.E.2d 574 (1982), the North Carolina Court of Appeals held that employer-employee relationships did not fall within the intended scope of § 75-1.1. The court reasoned that “[ejmployment practices fall within the purview of other statutes adopted for that express purpose.” 56 N.C.App. at 448, 289 S.E.2d at 120. Although neither Hunsucker nor Buie are directly dispositive of this case, both cases stand for the proposition that the presence of other federal or state statutory schemes may limit the scope of § 75-1.1.
We find it significant that no state court has held that its Unfair Trade Practices Act applies to securities transactions. In fact, courts in three states, Rhode Island, South Carolina, and Washington, have held that their state Unfair Trade Practices Act has no application to securities transactions. State v. Piedmont Funding Corp., 119 R.I. 695, 382 A.2d 819 (1978); State ex rel. McLeod v. Rhoades, 275 S.C. 104, 267 S.E.2d 539 (1980); Kittilson v. Ford, 23 Wash.App. 402, 595 P.2d 944 (1979), aff'd, 93 Wash. 223, 608 P.2d 264 (1980). In each case the state court held that its Unfair Trade Practices Act did not apply to securities transactions because of a particular statutory provision exempting “actions or transactions permitted under laws administered by any regulatory body” of the state or the United States. Although the presence of that statutory exemption makes Piedmont Funding, Rhodes and Kittilson distinguishable from this case, those cases, together with the absence of any other state court decision holding securities transactions subject to the state’s Unfair Trade Practices Act, provide some indication of the general scope of such acts.
We also find it significant that § 75-1.1 is reproduced verbatim from § 5 of the FTC Act, 15 U.S.C. § 45(a)(1) (1982), and that the courts interpreting and applying § 75-1.1 have deemed it appropriate “to look to the federal decisions interpreting the FTC Act for guidance in construing the meaning of G.S. § 75-1.1.” Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 262, 266 S.E.2d 610, 620 (1980) (citing Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975)). See also ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 48 (4th Cir.1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984). Thus, the fact that no federal court decision has applied § 5(a)(1) of the FTC Act to securities transactions is additional evidence of the scope of § 75-1.-I. Moreover, at least one district court has relied upon the scope of § 5(a)(1) of the FTC Act in holding that securities transactions were not subject to a Massachusetts statute which prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conkling v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 575 F.Supp. 760, 761 (D.Mass.1983) (interpreting Mass.Gen.Laws Ann. ch. 93A § 2(a) (1972)). Accord, Sweeney v. Keystone Provident Life Insurance Co., 578 F.Supp. 31, 35 (D.Mass.1983).
The plaintiffs argue that § 75-1.1 applies to securities transactions because North Carolina courts have applied that section in a variety of commercial settings. See, e.g., Johnson v. Phoenix Mutual Life Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980) (transaction between a mortgage broker and a borrower for the exclusive right to place permanent mortgage financing); Kent v. Humphries, 50 N.C.App. 580, 275 S.E.2d 176 (1981), aff'd and modified, 303 N.C. 675, 281 S.E.2d 43 (1981) (rental of commercial property); Ellis v. Smith-Broadhurst, Inc., 48 N.C.App. 180, 268 S.E.2d 271 (1980) (unfair methods of competition in the insurance business). See also United Roasters, Inc. v. Colgate-Palmolive Co., 485 F.Supp. 1041 (E.D.N.C. 1979), aff'd on other grounds, 649 F.2d 985 (4th Cir.1981), cert. denied, 454 U.S. 1054, 102 S.Ct. 599, 70 L.Ed.2d 590 (1981) (bulk sale of business’ assets); ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42 (4th Cir. 1983), aff'd on rehearing, 742 F.2d 170 (4th Cir.1984) (antitrust action brought by tire dealer against tire manufacturer). While it is true that North Carolina and federal courts have applied § 75-1.1 in a variety of commercial settings, that fact does not mean that § 75-1.1 applies to all commercial transactions or to securities transactions. Nor does it mean that the purposes behind the enactment of § 75-1.1 may no longer serve as some indication of its scope. In most of the cases cited above, the defendants anti-competitive conduct necessarily injured the consuming public.
We think that the North Carolina Supreme Court would hold, if presented with this issue, that securities transactions are beyond the scope of § 75-1.1. Our decision is consistent with § 75-1.1’s purpose to protect the consuming public, the North Carolina eases holding that other federal or state statutes may limit the scope of § 75-1.1, the absence of any other state court decision holding that securities transactions are subject to a similar Unfair Trade Practices Act, and the absence of any federal court decision holding that securities transactions are subject to § 5(a)(1) of the FTC Act. We do not believe that the North Carolina legislature would have intended § 75-1.1, with its treble damages provision, to apply to securities transactions which were already subject to pervasive and intricate regulation under the North Carolina Securities Act, N.C.Gen.Stat. § 78A-1 et seq. (1981), as well as the Securities Act of 1933, 15 U.S.C. § 77a et seq. (1982), and the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. (1982). Furthermore, to hold that § 75-1.1 applies to securities transactions could subject those involved with securities transactions to overlapping supervision and enforcement by both the North Carolina Attorney General, who is charged with enforcing § 75-1.1, and the North Carolina Secretary of State, who is charged with enforcing the North Carolina Securities Act. For all of these reasons, we hold that whatever the scope of § 75-1.1, securities transactions are beyond the reach of the North Carolina Unfair Trade Practices Act.
III
The second issue presented is whether the district court abused its discretion in denying the plaintiffs’ motion for a new trial on their claim for breach of fiduciary duty. It is well settled that “the granting or refusing of a new trial is a matter resting in the sound discretion of the trial judge, and that his action thereon is not reviewable upon appeal, save in the most exceptional circumstances.” Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 354 (4th Cir.1941); City of Richmond v. Atlantic Co., 273 F.2d 902, 916-17 (4th Cir.1960). In this case the district court instructed the jury that defendants Cralle, Schoenhut, Bigelow, Rodenhizer and Spann owed a fiduciary duty to the plaintiffs as minority shareholders of Durham Hosiery “as a matter of law.” N.C.Gen.Stat. § 55-35 (1982). The district court likewise instructed the jury that if it found that defendant Barnett was a majority shareholder of Durham Hosiery at the time the Proxy Statement was issued, a fiduciary relationship also existed between Barnett and the plaintiffs as a matter of law. The plaintiffs do not challenge the district court’s charge to the jury but argue that the verdict is against the manifest weight of the evidence. Based upon our review of the record, we are unable to conclude that the district court abused its discretion in denying the plaintiffs’ motion for a new trial. Accordingly, the judgment of the district court is
AFFIRMED.
. This action is but one of several in the federal courts arising out of the merger and reorganization of Durham Hosiery Mills, Inc. In White v. Durham Hosiery Mills, Inc., 753 F.2d 1072 (4th Cir.1985), another panel of this Court affirmed a jury verdict awarding a former minority shareholder compensatory damages of $25,900 and punitive damages of $50,000 on his action for misrepresentation under Rule 10b-5, 17 C.F.R. § 240.10b-5 (1983). Two actions brought by five other shareholders are presently pending in the United States District Court for the Middle District of North Carolina. See Umstead v. Durham Hosiery Mills, Inc., 578 F.Supp. 342 (M.D.N.C.1984); Teer v. Durham Hosiery Mills, Inc., 592 F.Supp. 1269 (1984).
. On January 9, 1981, plaintiff Lindner filed a complaint in the district court for the Western District of Virginia for the purpose of obtaining an injunction to postpone the shareholder meeting scheduled for January 12. On the morning of January 12, however, the district court concluded that Lindner had failed to show any irreparable injury from the holding of the meeting and the merger due to the availability of his appraisal remedy under state law.
. But see Hickey v. Howard, 598 F.Supp. 1105 (D.Mass.1984) (holding that Massachusetts statute proscribing unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce, and providing for treble damages, is applicable to securities transactions); Mitchelson v. Aviation Simulation Technology, Inc., 582 F.Supp. 1 (D.Mass. 1983) (same). However, two other judges in the United States District Court for the District of Massachusetts have held that this Massachusetts statute does not apply to securities transactions. See Moseley and Sweeney, infra.
. This fact makes the instant case clearly distinguishable from ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42 (4th Cir.1983), and Bostic Oil Corp. v. Michelin Tire Corp., 702 F.2d 1207 (4th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 242, 78 L.Ed.2d 232 (1983). In those cases this court held that proof of conduct violative of § 1 of the Sherman Act is proof sufficient to establish a violation of the North Carolina and South Carolina Unfair Trade Practices Acts. But a key to those decisions was this court’s observation that "it is an accepted tenet of basic antitrust law that § 5 of the [FTC] Act sweeps within its prohibitory scope conduct also condemned by § 1 of the Sherman Act." ITCO, 722 F.2d at 48 (citing FTC v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948); FTC v. Beech-Nut Packing Co., 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1922)).
. See footnote 3, supra.
. See footnote 4, supra.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
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sc_adminaction_is
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether 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.
IMMIGRATION AND NATURALIZATION SERVICE v. CARDOZA-FONSECA
No. 85-782.
Argued October 7, 1986
Decided March 9, 1987
Stevens, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and O’Connor, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 450. Scalia, J., filed an opinion concurring in the judgment, post, p. 452. Powell, J., filed a dissenting opinion, in which Rehnquist, C. J., and White, J., joined, post, p. 455.
Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Kuhl, Bruce N. Kuhlik, and David V. Bernal.
Dana Marks Keener argued the cause for respondent. With her on the brief was Bill Ong Hing.
Briefs of amici curiae urging affirmance were filed for the United Nations High Commissioner for Refugees by Ralph G. Steinhardt; for the American Civil Liberties Union et al. by Carol Leslie Wolchok, Burt Neuborne, Lucas Guttentag, Jack Novik, and Robert N. Weiner; for the American Immigration Lawyers Association by Ira J. Kurzban; for the International Human Rights Law Group et al. by E. Edward Bruce; and for the Lawyers Committee for Human Rights et al. by Richard F. Ziegler, Arthur C. Helton, Samuel Rabinove, Richard T. Foltin, Ruti G. Teitel, Steven M. Freeman, and Richard J. Rubin.
Justice Stevens
delivered the opinion of the Court.
Since 1980, the Immigration and Nationality Act has provided two methods through which an otherwise deportable alien who claims that he will be persecuted if deported can seek relief. Section 243(h) of the Act, 8 U. S. C. § 1253(h), requires the Attorney General to withhold deportation of an alien who demonstrates that his “life or freedom would be threatened” on account of one of the listed factors if he is deported. In INS v. Stevic, 467 U. S. 407 (1984), we held that to qualify for this entitlement to withholding of deportation, an alien must demonstrate that “it is more likely than not that the alien would be subject to persecution” in the country to which he would be returned. Id., at 429-430. The Refugee Act of 1980, 94 Stat. 102, also established a second type of broader relief. Section 208(a) of the Act, 8 U. S. C. § 1158(a), authorizes the Attorney General, in his discretion, to grant asylum to an alien who is unable or unwilling to return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” § 101(a)(42), 8 U. S. C. § 1101(a)(42).
In Stevie, we rejected an alien’s contention that the § 208(a) “well-founded fear” standard governs applications for withholding of deportation under 1243(h). Similarly, today we reject the Government’s contention that the § 243(h) standard, which requires an alien to show that he is more likely than not to be subject to persecution, governs applications for asylum under § 208(a). Congress used different, broader language to define the term “refugee” as used in § 208(a) than it used to describe the class of aliens who have a right to withholding of deportation under § 243(h). The Act’s establishment of a broad class of refugees who are eligible for a discretionary grant of asylum, and a narrower class of aliens who are given a statutory right not to be deported to the country where they are in danger, mirrors the provisions of the United Nations Protocol Relating to the Status of Refugees, which provided the motivation for the enactment of the Refugee Act of 1980. In addition, the legislative history of the 1980 Act makes it perfectly clear that Congress did not intend the class of aliens who qualify as refugees to be coextensive with the class who qualify for § 243(h) relief.
I
Respondent is a 38-year-old Nicaraguan citizen who entered the United States in 1979 as a visitor. After she remained in the United States longer than permitted, and failed to take advantage of the Immigration and Naturalization Service’s (INS) offer of voluntary departure, the INS commenced deportation proceedings against her. Respondent conceded that she was in the country illegally, but requested withholding of deportation pursuant to § 243(h) and asylum as a refugee pursuant to § 208(a).
To support her request under § 243(h), respondent attempted to show that if she were returned to Nicaragua her “life or freedom would be threatened” on account of her political views; to support her request under § 208(a), she attempted to show that she had a “well-founded fear of persecution” upon her return. The evidence supporting both claims related primarily to the activities of respondent’s brother who had been tortured and imprisoned because of his political activities in Nicaragua. Both respondent and her brother testified that they believed the Sandinistas knew that the two of them had fled Nicaragua together and that even though she had not been active politically herself, she would be interrogated about her brother’s whereabouts and activities. Respondent also testified that because of her brother’s status, her own political opposition to the Sandinis-tas would be brought to that government’s attention. Based on these facts, respondent claimed that she would be tortured if forced to return.
The Immigration Judge applied the same standard in evaluating respondent’s claim for withholding of deportation under § 248(h) as he did in evaluating her application for asylum under § 208(a). He found that she had not established “a clear probability of persecution” and therefore was not entitled to either form of relief. App. to Pet. for Cert. 27a. On appeal, the Board of Immigration Appeals (BIA) agreed that respondent had “failed to establish that she would suffer persecution within the meaning of section 208(a) or 243(h) of the Immigration and Nationality Act.” Id., at 21a.
In the Court of Appeals for the Ninth Circuit, respondent did not challenge the BIA’s decision that she was not entitled to withholding of deportation under § 243(h), but argued that she was eligible for consideration for asylum under § 208(a), and contended that the Immigration Judge and BIA erred in applying the “more likely than not” standard of proof from § 243(h) to her § 208(a) asylum claim. Instead, she asserted, they should have applied the “well-founded fear” standard, which she considered to be more generous. The court agreed. Relying on both the text and the structure of the Act, the court held that the “well-founded fear” standard which governs asylum proceedings is different, and in fact more generous, than the “clear probability” standard which governs withholding of deportation proceedings. 767 F. 2d 1448, 1452-1453 (1985). Agreeing with the Court of Appeals for the Seventh Circuit, the court interpreted the standard to require asylum applicants to present “ ‘specific facts’ through objective evidence to prove either past persecution or ‘good reason’ to fear future persecution.” Id., at 1453 (citing Carvajal-Munoz v. INS, 743 F. 2d 562, 574 (CA7 1984)). The court remanded respondent’s asylum claim to the BIA to evaluate under the proper legal standard. We granted cer-tiorari to resolve a Circuit conflict on this important question. 475 U. S. 1009 (1986).
I — I HH
The Refugee Act of 1980 established a new statutory procedure for granting asylum to refugees. The 1980 Act added a new § 208(a) to the Immigration and Nationality Act of 1952, reading as follows:
“The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.” 94 Stat. 105, 8 U. S. C. § 1158(a).
Under this section, eligibility for asylum depends entirely on the Attorney General’s determination that an alien is a “refugee,” as that term is defined in § 101(a)(42), which was also added to the Act in 1980. That section provides:
“The term ‘refugee’ means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion... 94 Stat. 102, 8 U. S. C. § 1101(a)(42).
Thus, the “persecution or well-founded fear of persecution” standard governs the Attorney General’s determination whether an alien is eligible for asylum.
In addition to establishing a statutory asylum process, the 1980 Act amended the withholding of deportation provision, § 243(h). See Stevic, 467 U. S., at 421, n. 16. Prior to 1968, the Attorney General had discretion whether to grant withholding of deportation to aliens under § 243(h). In 1968, however, the United States agreed to comply with the substantive provisions of Articles 2 through 34 of the 1951 United Nations Convention Relating to the Status of Refugees. See 19 U.S.T. 6223, 6259-6276, T.I.A.S. No. 6577 (1968); see generally Stevie, supra, at 416-417. Article 33.1 of the Convention, 189 U.N.T.S. 150, 176 (1954), reprinted in 19 U.S.T. 6259, 6276, which is the counterpart of §243(h) of our statute, imposed a mandatory duty on contracting States not to return an alien to a country where his “life or freedom would be threatened” on account of one of the enumerated reasons. See infra, at 441. Thus, although § 243(h) itself did not constrain the Attorney General’s discretion after 1968, presumably he honored the dictates of the United Nations Convention. In any event, the 1980 Act removed the Attorney General’s discretion in § 243(h) proceedings.
In Stevie we considered it significant that in enacting the 1980 Act Congress did not amend the standard of eligibility for relief under § 243(h). While the terms “refugee” and hence “well-founded fear” were made an integral part of the § 208(a) procedure, they continued to play no part in § 243(h). Thus we held that the prior consistent construction of § 243(h) that required an applicant for withholding of deportation to demonstrate a “clear probability of persecution” upon deportation remained in force. Of course, this reasoning, based in large part on the plain language of § 243(h), is of no avail here since § 208(a) expressly provides that the “well-founded fear” standard governs eligibility for asylum.
The Government argues, however, that even though the “well-founded fear” standard is applicable, there is no difference between it and the “would be threatened” test of § 243(h). It asks us to hold that the only way an applicant can demonstrate a “well-founded fear of persecution” is to prove a “clear probability of persecution.” The statutory language does not lend itself to this reading.
To begin with, the language Congress used to describe the two standards conveys very different meanings. The “would be threatened” language of § 243(h) has no subjective component, but instead requires the alien to establish by objective evidence that it is more likely than not that he or she will be subject to persecution upon deportation. See Stevie, supra. In contrast, the reference to “fear” in the § 208(a) standard obviously makes the eligibility determination turn to some extent on the subjective mental state of the lien. “The linguistic difference between the words ‘well-ounded fear’ and ‘clear probability’ may be as striking as that jetween a subjective and an objective frame of reference.
.. We simply cannot conclude that the standards are identi:al.” Guevara-Flores v. INS, 786 F. 2d 1242, 1250 (CA5 1986), cert. pending, No. 86-388; see also Carcamo-Flores v. INS, 805 F. 2d 60, 64 (CA2 1986); 767 F. 2d, at 1452 (case below).
That the fear must be “well-founded” does not alter the obvious focus on the individual’s subjective beliefs, nor does it transform the standard into a “more likely than not” one. One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place. As one leading authority has pointed out:
“Let us... presume that it is known that in the applicant’s country of origin every tenth adult male person is either put to death or sent to some remote labor camp.... In such a case it would be only too apparent that anyone who has managed to escape from the country in question will have ‘well-founded fear of being persecuted’ upon his eventual return.” 1 A. Grahl-Madsen, The Status of Refugees in International Law 180 (1966).
This ordinary and obvious meaning of the phrase is not to be lightly discounted. See Russello v. United States, 464 U. S. 16, 21 (1983); Ernst & Ernst v. Hochfelder, 425 U. S. 185, 198-199 (1976). With regard to this very statutory scheme, we have considered ourselves bound to “ ‘assume “that.the legislative purpose is expressed by the ordinary meaning of the words used.”’” INS v. Phinpathya, 464 U. S. 183, 189 (1984) (quoting American Tobacco Co. v. Patterson, 456 U. S. 63, 68 (1982), in turn quoting Richards v. United States, 369 U. S. 1, 9 (1962)).
The different emphasis of the two standards which is so clear on the face of the statute is significantly highlighted by the fact that the same Congress simultaneously drafted § 208(a) and amended § 243(h). In doing so, Congress chose to maintain the old standard in § 243(h), but to incorporate a different standard in § 208(a). “ ‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’” Russello v. United States, supra, at 23 (quoting United States v. Wong Kim Bo, 472 F. 2d 720, 722 (CA5 1972)). The contrast between the language used in the two standards, and the fact that Congress used a new standard to define the term “refugee,” certainly indicate that Congress intended the two standards to differ.
I — l I — I
The message conveyed by the plain language of the Act is confirmed by an examination of its history. Three aspects of that history are particularly compelling: The pre-1980 experience under § 203(a)(7), the only prior statute dealing with asylum; the abundant evidence of an intent to conform the definition of “refugee” and our asylum law to the United Nations Protocol to which the United States has been bound since 1968; and the fact that Congress declined to enact the Senate version of the bill that would have made a refugee ineligible for asylum unless “his deportation or return would be prohibited by § 243(h).”
The Practice Under § 203(a)(7).
The statutory definition of the term “refugee” contained in § 101(a)(42) applies to two asylum provisions within the Immigration and Nationality Act. Section 207, 8 U. S. C. § 1157, governs the admission of refugees who seek admission from foreign countries. Section 208, 8 U. S. C. § 1158, sets out the process by which refugees currently in the United States may be granted asylum. Prior to the 1980 amendments there was no statutory basis for granting asylum to aliens who applied from within the United States. Asylum for aliens applying for admission from foreign countries had, however, been the subject of a previous statutory provision, and Congress’ intent with respect to the changes that it sought to create in that statute are instructive in discerning the meaning of the term “well-founded fear.”
Section § 203(a)(7) of the pre-1980 statute authorized the Attorney General to permit “conditional entry” to a certain number of refugees fleeing from Communist-dominated areas or the Middle East “because of persecution or fear of persecution on account of race, religion, or political opinion.” 79 Stat. 913, 8 U. S. C. § 1153(a)(7) (1976 ed.). The standard that was applied to aliens seeking admission pursuant to § 203(a)(7) was unquestionably more lenient than the “clear probability” standard applied in § 243(h) proceedings. In Matter of Tan, 12 I. & N. Dec. 564, 569-570 (1967), for example, the BIA “found no support” for the argument that “an alien deportee is required to do no more than meet the standards applied under section 203(a)(7) of the Act when seeking relief under section 243(h).” Similarly, in Matter of Adamska, 12 I. & N. Dec. 201, 202 (1967), the Board held that an alien’s inability to satisfy § 243(h) was not determinative of her eligibility under the “substantially broader” standards of § 203(a)(7). One of the differences the Board highlighted between the statutes was that § 243(h) requires a showing that the applicant “would be” subject to persecution, while § 203(a)(7) only required a showing that the applicant was unwilling to return “because of persecution or fear of persecution.” 12 I. & N., at 202 (emphasis in original). In sum, it was repeatedly recognized that the standards were significantly different.
At first glance one might conclude that this wide practice under the old § 203(a)(7), which spoke of “fear of persecution,” is not probative of the meaning of the term “well-founded fear of persecution” which Congress adopted in 1980. Analysis of the legislative history, however, demonstrates that Congress added the “well-founded” language only because that was the language incorporated by the United Nations Protocol to which Congress sought to conform. See infra, at 436-437. Congress was told that the extant asylum procedure for refugees outside of the United States was acceptable under the Protocol, except for the fact that it made various unacceptable geographic and political distinctions. The legislative history indicates that Congress in no way wished to modify the standard that had been used under § 203(a)(7). Adoption of the INS’s argument that the term “well-founded fear” requires a showing of clear probability of persecution would clearly do violence to Congress’ intent that the standard for admission under §207 be no different than the one previously applied under § 203(a)(7).
The United Nations Protocol.
If one thing is clear from the legislative history of the new definition of “refugee,” and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, to which the United States acceded in 1968. Indeed, the definition of “refugee” that Congress adopted, see supra, at 428, is virtually identical to the one prescribed by Article 1(2) of the Convention which defines a “refugee” as an individual who
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Compare 19 U.S.T. 6225 with 19 U.S.T. 6261. Not only did Congress adopt the Protocol’s standard in the statute, but there were also many statements indicating Congress’ intent that the new statutory definition of “refugee” be interpreted in conformance with the Protocol’s definition. The Conference Committee Report, for example, stated that the definition was accepted “with the understanding that it is based directly upon the language of the Protocol and it is intended that the provision be construed consistent with the Protocol.” S. Rep. No. 96-590, p. 20 (1980); see also H. R. Rep., at 9. It is thus appropriate to consider what the phrase “well-founded fear” means with relation to the Protocol.
The origin of the Protocol’s definition of “refugee” is found in the 1946 Constitution of the International Refugee Organization (IRO). See 62 Stat. 3037. The IRO defined a “refugee” as a person who had a “valid objection” to returning to his country of nationality, and specified that “fear, based on reasonable grounds of persecution because of race, religion, nationality, or political opinions...” constituted a valid objection. See IRO Constitution, Annex 1, Pt. 1, § Cl(a)(i). The term was then incorporated in the United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (July 28, 1951). The Committee that drafted the provision explained that “[t]he expression ‘well-founded fear of being the victim of persecution...’ means that a person has either been actually a victim of persecution or can show good reason why he fears persecution.” U. N. Rep., at 39. The 1967 Protocol incorporated the “well-founded fear” test, without modification. The standard, as it has been consistently understood by those who drafted it, as well as those drafting the documents that adopted it, certainly does not require an alien to show that it is more likely than not that he will be persecuted in order to be classified as a “refugee.”
In interpreting the Protocol’s definition of “refugee” we are further guided by the analysis set forth in the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979). The Handbook explains that “[i]n general, the applicant’s fear should be considered well founded if he can establish, to a reasonable degree, that his continued stay-in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there.” Id., at Ch. II B(2)(a) §42; see also id., §§37-41.
The High Commissioner’s analysis of the United Nations’ standard is consistent with our own examination of the origins of the Protocol’s definition, as well as the conclusions of many scholars who have studied the matter. There is simply no room in the United Nations’ definition for concluding that because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted, that he or she has no “well-founded fear” of the event happening. See supra, at 431. As we pointed out in Stevic, a moderate interpretation of the “well-founded fear” standard would indicate “that so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.” 467 U. S., at 424-425.
In Stevic, we dealt with the issue of withholding of deportation, or nonrefoulement, under § 243(h). This provision corresponds to Article 33.1 of the Convention. Significantly though, Article 33.1 does not extend this right to everyone who meets the definition of “refugee.” Rather, it provides that “[n]o Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership or a particular social group or political opinion.” 19 U.S.T., at 6276,189 U.N.T.S., at 176 (emphasis added). Thus, Article 33.1 requires that an applicant satisfy two burdens: first, that he or she be a “refugee,” i. e., prove at least a “well-founded fear of persecution”; second, that the “refugee” show that his or her life or freedom “would be threatened” if deported. Section 243(h)’s imposition of a “would be threatened” requirement is entirely consistent with the United States’ obligations under the Protocol.
Section 208(a), by contrast, is a discretionary mechanism which gives the Attorney General the authority to grant the broader relief of asylum to refugees. As such, it does not correspond to Article 33 of the Convention, but instead corresponds to Article 34. See Carvajal-Munoz, 743 F. 2d, at 574, n. 15. That Article provides that the contracting States “shall as far as possible facilitate the assimilation and naturalization of refugees....” Like § 208(a), the provision is prec-atory; it does not require the implementing authority actually to grant asylum to all those who are eligible. Also like § 208(a), an alien must only show that he or she is a “refugee” to establish eligibility for relief. No further showing that he or she “would be” persecuted is required.
Thus, as made binding on the United States through the Protocol, Article 34 provides for a precatory, or discretionary, benefit for the entire class of persons who qualify as “refugees,” whereas Article 33.1 provides an entitlement for the subcategory that “would be threatened” with persecution upon their return. This precise distinction between the broad class of refugees and the subcategory entitled to § 243(h) relief is plainly revealed in the 1980 Act. See Stevic, 467 U. S., at 428, n. 22.
Congress’ Rejection of S. 64.3.
Both the House bill, H. R. 2816, 96th Cong., 1st Sess. (1979), and the Senate bill, S. 643, 96th Cong., 1st Sess. (1979), provided that an alien must be a “refugee” within the meaning of the Act in order to be eligible for asylum. The two bills differed, however, in that the House bill authorized the Attorney General, in his discretion, to grant asylum to any refugee, whereas the Senate bill imposed the additional requirement that a refugee could not obtain asylum unless “his deportation or return would be prohibited under section 243(h).” S. Rep., at 26. Although this restriction, if adopted, would have curtailed the Attorney General’s discretion to grant asylum to refugees pursuant to § 208(a), it would not have affected the standard used to determine whether an alien is a “refugee.” Thus, the inclusion of this prohibition in the Senate bill indicates that the Senate recognized that there is a difference between the “well-founded fear” standard and the clear-probability standard. The enactment of the House bill rather than the Senate bill in turn demonstrates that Congress eventually refused to restrict eligibility for asylum only to aliens meeting the stricter standard. “Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359, 392-393 (1980) (Stewart, J., dissenting); cf. Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 200 (1974); Russello v. United States, 464 U. S., at 23.
IV
The INS makes two major arguments to support its contention that we should reverse the Court of Appeals and hold that an applicant can only show a “well-founded fear of persecution” by proving that it is more likely than not that he or she will be persecuted. We reject both of these arguments: the first ignores the structure of the Act; the second misconstrues the federal courts’ role in reviewing an agency’s statutory construction.
First, the INS repeatedly argues that the structure of the Act dictates a decision in its favor, since it is anomalous for § 208(a), which affords greater benefits than § 243(h), see n. 6, supra, to have a less stringent standard of eligibility. This argument sorely fails because it does not take into account the fact that an alien who satisfies the applicable standard under § 208(a) does not have a right to remain in the United States; he or she is simply eligible for asylum, if the Attorney General, in his discretion, chooses to grant it. An alien satisfying §243(h)’s stricter standard, in contrast, is automatically entitled to withholding of deportation. In Matter of Salim, 18 I. & N. Dec. 311 (1982), for example, the Board held that the alien was eligible for both asylum and withholding of deportation, but granted him the more limited remedy only, exercising its discretion to deny him asylum. See also Walai v. INS, 552 F. Supp. 998 (SDNY 1982); Mat ter of Shirdel, Interim Decision No. 2958 (BIA Feb. 21, 1984). We do not consider it at all anomalous that out of the entire class of “refugees,” those who can show a clear probability of persecution are entitled to mandatory suspension of deportation and eligible for discretionary asylum, while those who can only show a well-founded fear of persecution are not entitled to anything, but are eligible for the discretionary relief of asylum.
There is no basis for the INS’s assertion that the discretionary/mandatory distinction has no practical significance. Decisions such as Matter of Salim, supra, and Matter of Shirdel, swpra, clearly demonstrate the practical import of the distinction. Moreover, the 1980 Act amended § 243(h) for the very purpose of changing it from a discretionary to a mandatory provision. See supra, at 428-429. Congress surely considered the discretionary/mandatory distinction important then, as it did with respect to the very definition of “refugee” involved here. The House Report provides:
“The Committee carefully considered arguments that the new definition might expand the numbers of refugees eligible to come to the United States and force substantially greater refugee admissions than the country could absorb. However, merely because an individual or group comes within the definition will not guarantee resettlement in the United States.” H. R. Rep., at 10.
This vesting of discretion in the Attorney General is quite typical in the immigration area, see, e. g., INS v. Jong Ha Wang, 450 U. S. 139 (1981). If anything is anomalous, it is that the Government now asks us to restrict its discretion to a narrow class of aliens. Congress has assigned to the Attorney General and his delegates the task of making these hard individualized decisions; although Congress could have crafted a narrower definition, it chose to authorize the Attorney General to determine which, if any, eligible refugees should be denied asylum.
The INS’s second principal argument in support of the proposition that the “well-founded fear” and “clear probability” standard are equivalent is that the BIA so construes the two standards. The INS argues that the BIA’s construction of the Refugee Act of 1980 is entitled to substantial deference, even if we conclude that the Court of Appeals’ reading of the statutes is more in keeping with Congress’ intent. This argument is unpersuasive.
The question whether Congress intended the two standards to be identical is a pure question of statutory construction for the courts to decide. Employing traditional tools of statutory construction, we have concluded that Congress did not intend the two standards to be identical. In Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), we explained:
“The judiciary is the final authority-on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. [Citing cases.] If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Id., at 843, n. 9 (citations omitted).
The narrow legal question whether the two standards are the same is, of course, quite different from the question of interpretation that arises in each case in which the agency is required to apply either or both standards to a particular set of facts. There is obviously some ambiguity in a term like “well-founded fear” which can only be given concrete meaning through a process of case-by-case adjudication. In that process of filling “‘any gap left, implicitly or explicitly, by Congress,’” the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program. See Chevron, supra, at 843, quoting Morton v. Ruiz, 415 U. S. 199, 231 (1974). But our task today is much narrower, and is well within the province of the Judiciary. We do not attempt to set forth a detailed description of how the “well-founded fear” test should be applied. Instead, we merely hold that the Immigration Judge and the BIA were incorrect in holding that the two standards are identical.
Our analysis of the plain language of the Act, its symmetry with the United Nations Protocol, and its legislative history, lead inexorably to the conclusion that to show a “well-founded fear of persecution,” an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country. We find these ordinary canons of statutory construction compelling, even without regard to the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien. See INS v. Errico, 385 U. S. 214, 225 (1966); Costello v. INS, 376 U. S. 120, 128 (1964); Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948).
Deportation is always a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country. In enacting the Refugee Act of 1980 Congress sought to “give the United States sufficient flexibility to respond to situations involving political or religious dissidents and detainees throughout the world.” H. R. Rep., at 9. Our holding today increases that flexibility by rejecting the Government’s contention that the Attorney General may not even consider granting asylum to one who fails to satisfy the strict § 243(h) standard. Whether or not a “refugee” is eventually granted asylum is a matter which Congress has left for the Attorney General to decide. But it is clear that Congress did not intend to restrict eligibility for that relief to those who could prove that it is more likely than not that they will be persecuted if deported.
The judgment of the Court of Appeals is
Affirmed.
We explained that the Court of Appeals’ decision had rested “on the mistaken premise that every alien who qualifies as a ‘refugee’ under the statutory definition is also entitled to a withholding of deportation under § 243(h). We find no support for this conclusion in either the language of § 243(h), the structure of the amended Act, or the legislative history.” INS v. Stevic, 467 U. S., at 428.
Compare Carcamo-Flores
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_genapel1
|
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.
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.
DUNBAR et al. v. COMMISSIONER OF INTERNAL REVENUE (two cases).
Nos. 2770-2772.
Circuit Court of Appeals, First Circuit,
May 23, 1933.
Allison L. Newton, of Boston, Mass. (Nutter, McClennen & Fish, of Boston, Mass., on the brief), for petitioners for review.
J. P. Jackson, Sewall Key, and Francis H. Horan, Sp. Assts. to Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., on the brief), for Commissioner of Internal Revenue.
BINGHAM, Circuit Judge.
These are petitions to review decisions of the Board of Tax App.eals determining deficiencies in income taxes against the petitioners in the sum of $3,854.80 for the calendar year 1924, $784.91 for the calendar year 1925, and $769.30 for the calendar year 1926.
The basis of the determination by the Board was its ruling that the petitioners were an association taxable as a corporation and not as a trust. The question is whether the Fiske and Hammond trust, so called, was an association under section 2 (a) (2) of chapter 237 of the Revenue Act of 1924 (43 Stat. 253) and of section 2 (a) (2) of chapter 27 of the Revenue Act of 1926 (44 Stat. 9, 26 USCA § 1262 (a) (2).
Section 2 (a) (2) of the Revenue Act of 1924 is the same as the corresponding section of the Revenue Act of 1926, and reads as follows:
Sec. 2. (a) “When used in this title— * *
“(2) The term ‘corporation’ includes associations, joint-stock companies, and insurance companies.”
May 12, 1924, Hecht v. Malley, 265 U. S. 144, 44 S. Ct. 462, 68 L. Ed. 949, was decided. In that case the Supreme Court had under consideration section 1 of the Revenue Act of 1918 (40 Stat. 1057) which reads the same as section 2 (a) (2) of the Revenue Acts of 1924 and 1926. Section 1000 (a) of the Act of 1918 provided that:
“Every domestic corporation shall pay annually a special excise tax with respect to carrying on or doing business,” etc. And section 700 of the Revenue Act of 1924 (26 USCA § 223 note) imposed a like tax on every domestic corporation “with respect to carrying on or doing business.”
In Hecht v. Malley it was pointed out (265 U. S. 154, bottom, 44 S. Ct. 462, 466, 68 L. Ed. 949) that section 1 and section 1000 (a) of the Act of 1918, when read together, provided in terms that “every corporation, association, joint-stock company and insurance company, ‘created or organized in the United States,’ shall pay a special excise tax, as prescribed, with respect to the carrying on or doing business.” And it was held (1) that the provisions of the Act of 1918 plainly showed the intention of Congress “to extend the tax from one imposed solely upon organizations exercising statutory privileges, as theretofore, to include also organizations exercising the privilege of doing business as associations at the common law”; (2) that the Heeht trust, the Haymarket trust, and the Crocker and Burbank trust (the organizations there involved), each of which were engaged in carrying on business, were “ ‘associations’ created or organized in the United States and engaged in business; within the meaning of the Act”; that “the word ‘association’ as used in the Act clearly includes ‘Massachusetts Trusts’ such as those herein involved, having quasi-corporate organizations under which they are engaged in carrying on business enterprises” (265 U. S. page 157, bottom, 44 S. Ct. 462, 467, 68 L. Ed. 949); that these trusts differ from the Wachusetts trust, under consideration in Crocker v. Malley, 249 U. S. 223, 39 S. Ct. 270, 63 L. Ed. 573, 2 A. L. R. 1601, for there “the trustees were, in substance, merely holding property for the collection of the income and its distribution among the beneficiaries, and were not engaged, either by themselves or in connection with the beneficiaries, in the carrying on of any business” (pages 160, 161 of 265 U. S., 44 S. Ct. 462, 468); and “that Crocker v. Malley is not an authority for the broad proposition that under an Act imposing an excise tax upon the privilege of carrying on a business, a Massachusetts Trust engaged in the carrying on of business in a quasi-corporate form, in which the trustees have similar or greater powers than the directors in a corporation, is not an ‘association’ within the meaning of its provisions.” ■ In other words it held that the so-called trusts were associations because, through their trustees, they were engaged in carrying on a business after the manner and form ■ of a corporation, the trustees having similar or greater powers than the directors in a corporation, and, such being the ease, they were to be deemed associations within the meaning of the Act of 1918; and that that was so “independently of the large measure of control exercised by the beneficiaries” in the Heeht and Haymarket Cases. That is, even if the control of the certificate holders had been little or nothing, nevertheless, as the trusts were engaged, through the trustees, in carrying on business after the manner and form of a corporation, they were associations within the meaning of the act; that a slight measure of control on the part of the beneficiaries, under such circumstances, would not relieve them from being associations.
June 7, 1924, following the decision in Hecht v. Malley, supra, the Secretary of the Treasury approved and promulgated the following Treasury Decision' (No. 3598), published June 16, 1924:
“To Collectors of internal revenue and others concerned:
“In order to give effect to the decision of May 12, 1924, by the United States Supreme Court in the ease of Hecht v. Malley and in the other eases named therein (Nos. 99, 100, 101, and 119 — October Term, 1923) article 7 of Regulations 50 (revised edition, approved June 21, 1920) and article 8 of Regulations 64 are amended so as to read as follows:
“Trusts. Two distinct classes of trusts are recognized by the Department, namely, holding trusts and operating trusts.
“Holding trusts are those in which the trustees are merely holding property for the collection of the income and distributing it among the beneficiaries and are not engaged, either by themselves or in connection with the beneficiaries, in the carrying on of any business. Such trusts are not associations within the meaning of the law and are not subject to the tax.
“Operating trusts are those in which the trustees are not restricted to the mere collection of funds and paying them over to thé beneficiaries but are associated together in much the same manner as directors in a corporation for the purpose of, and are actually engaged in, carrying on some business enterprise. These trusts, whether of the Massachusetts type or otherwise, are to be deemed associations within the meaning of the Act, independently of any control exercised by the beneficiaries, and subject to the tax.
“D. H. Blair,
“Commissioner of Internal Revenue.
“Approved June 7,1924,
“A. W. Mellon, “Secretary of the Treasury.”
On August 11, 1924, the Commissioner promulgated Income Tax Ruling No. 2061, as follows:
“The general rule in regard to holding trusts and operating trusts which is announced in the decision of the Supreme Court of the United States in the case of Hecht v. Malloy and in Treasury b Decision 3598 a * is applicable under all titles of the Revenue Acts of 1918 and 1920.”
This was afterwards made to cover the years 1921 and 1924. Memorandum 2291 of Solicitor of Internal Revenue (July 9,1924), published August 18, 1924.
On October 6, 1924, Treasury Regulations 65 were promulgated, articles 1502 and 1504 of which read as follows:
“Art. 1502. Association. Associations and Joint-stock companies include associations, common-law trusts, and organizations by whatever name known, which act or do business in an organized capacity, whether created under and pursuant to State laws, agreements, declarations of trust, or otherwise, the net income of which, if any, is distributed or distributable among the shareholders on the basis of the capital stock which each holds, or, where there is no capital stock, on the basis of the proportionate share or capital which each-has or has invested in the business or property of the organization. Si*
“Art. 1504. Association distinguished from trust.
“Holding trusts, in which the trustees are merely holding property for the collection of the income and its distribution among the beneficiaries, and are not engaged, either by themselves or in connection with the beneficiaries, in the carrying on of any business, are not associations within the meaning of the law. The trust and the beneficiaries thereof will be subject to tax as provided in articles 341-347. Operating trusts, whether or not of the Massachusetts type, in which the trustees are not restricted to the mere collection of funds and their payments to the beneficiaries, but are associated together in much the same manner as directors in a corporation for the purpose of carrying on some business enterprise, are to be deemed associations within the meaning of the Act, regardless of the control exercised by the beneficiaries.”
In Treasury Regulations 69, article 1502 is identical with the same numbered article in Regulations 65, but article 1504 was made to read as follows:
“Art. 1504. Association distinguished from trust.
“Where trustees merely hold property for the collection of the income and its distribution among the beneficiaries of the trust, and are not engaged, either by themselves or in connection with the beneficiaries in the carrying on of any business, and the beneficiaries have no control over the trust, although their consent may be required for the filling of a vacancy among the trustees or for a modification of the terms of the trust, no association exists, and the trust and the beneficiaries thereof will be subject to tax as provided by section 219 and by articles 341-347. If, however, the beneficiaries have positive control over the trust, whether through the right periodically to elect trustees or otherwise, an association exists within the meaning of section 2. Even in the absence of any control by the beneficiaries, where the trustees are not restricted to the mere collection of funds and their payment to the beneficiaries, but are associated together with similar or great*' er powers than the directors in a corporation for the purpose of carrying on some business enterprise, the trust is an association within the meaning of the statute.”
The Commissioner in his contention that the Eiske and Hammond trust is an association relies largely upon the last 'clause of article 1504 as promulgated under the Acts of 1924 and 1926, respectively. The only material difference in the language of these clauses for those years is that in article 1504 for the year 1924, the clause begins with the words “Operating trusts, whether or not of the Massachusetts type,” while in the same article for 1926 these words do not appear in the clause. The phrase “Regardless of the control exercised by the beneficiaries” contained in the last clause of the article for 1924 does not differ in meaning from the phrase “Even in the absence of any control by the beneficiaries” contained in the clause of the article for 1926. In fact the two phrases in article 1504 for the two years, though worded somewhat differently, mean the same. Nor does the last clause of article 1504, when read in connection with the first clause of that article for the two years, differ from the last clause of the Treasury Decision promulgated June 7, 1924, and published June 16, 1924, “in order [as it says] to give effect to the decision of May 12, 1924, by the United States Supreme Court in the ease of Hecht v. Mal-ley,” although from the last clause of article 1504 there is omitted after the words “for the purpose of” and before the words “carrying on some business enterprise” the words “and are actually engaged in.” Why these words were omitted from this clause of article 1504 in 1924 and 1926 we are not informed. If it was not thereby intended to change the meaning of the clause in either case, it is unimportant. If with a contrary intention, then it is plain that neither clause complies with the holding of the Supreme Court in Hecht v. Malley or accords with the last clause of Treasury Decision promulgated June 7,1924, which, according to its own language, was adopted “in order to give effect to the decision of May T2, 1924, of the United States Supreme Court in the ease of Hecht v. Malley.” It is probable that it is the omission from article 1504 of the words “and are actually engaged in” which has given rise to the contention of the commissioner that the Eiske and Hammond trust is an association. His contention is, in substance, that the Piske and Hammond trust is an association within the. meaning of the act because its trustees, by the terms of the trust, are given wide powers in the way of carrying on business; and that it is an association although the trustees do not exercise those powers by actually engaging in business. He states that a test based on the trustees actually engaging in business is difficult to apply and, therefore, should not be considered as an element in determining whether the" organization is a trust or an association.
The Piske and Hammond trust was a family affair. Prior to its creation Esther Piske Hammond owned a parcel of land with a building at 9 Harrison avenue in Boston; and she and her brother, George S. Piske, and certain trustees for his benefit owned in common three parcels of land and buildings thereon in Boston. One was the Piske building at 89 State street; one the Piske building annex at 99 State street; and the other was a building at 41-45 Essex street and 1-3 Harrison avenue. At the time of the creation of the trust all of the property was under lease for about eight years and seven months, the periods ending in 1928. Under the terms of these leases the lessees Were to make repairs and furnish their own heat and janitor service.
At the time of the creation of the trust, the Piske building and annex were in the hands of'a real estate firm under instructions to sell the property as soon as possible, and within about twenty days after the deed was given to the trustees the Piske building and annex were sold through the real estate firm. Part of the purchase price was paid in cash, the balance being secured by a mortgage. The cash was distributed immediately to the shareholder’s, as were the later payments of the principal and interest, the final payment on the mortgage being November 4, 1924.
During 1924, the first year in question, the only duties performed by the trustees were the collection of the balance of the mortgage debt and distributing it to the shareholders, and the collection of the rentals under the leases of the two unsold properties, the payment of taxes and insurance on these properties and the distribution of the net receipts to the beneficiaries.
The trust, according to its terms, was to continue during certain lives and twenty years thereafter, unless sooner terminated by the trustees in their discretion. The trustees were given broad powers. They included, among other things, power to lease the properties in whole or in part from time to time; to sell or exchange the same, as they saw fit; to buy other property, real or personal; to borrow money to improve the properties or to purchase other property; to make dividends from the income and principal; and generally to manage the estate. The trust deed expressly named the person who was to fill the first vacancy in the office of trustee. The surviving trustees were authorized to fill any succeeding vacancy, having first obtained -the written individual assents of a majority of the shareholders. These were in substance the powers of the trustees.
The shareholders had no control over the trustees in the management of the trust; they could not amend the trust or remove a trustee. And, in ease of a vacancy in the office of trustee, a majority of the shareholders, acting separately and not in meeting, only had a negative upon the power of the trustees to fill such vacancy.
It is evident that the trustees of the Fiske and Hammond trust, during the periods in question, were not actually engaged in carrying on a business and were not an association within the meaning of Hecht v. Malley, the Treasury Decision of June 7, 1924, or within the last clause of article 1504, unless that article, in the particular in question, was incomplete and failed to comply with the decision of the Supreme Court in Hecht v. Malley and the Treasury Decision of June 7, 1924. The words “and are actually engaged in” were regarded by this court as constituting a part of article 1504 in White v. Hornblower, 27 F.(2d) 777, at page 778.
The question, therefore, reduces itself to this: Was the Fiske and Hammond trust, because of the broad powers vested in the trustees by the declaration of trust, an association within the meaning of section 2 (a) (2), even though they did not exercise those powers by engaging in business?
In White v. Hornblower, 27 F.(2d) 777, 778, this court said: “The measure of control over the trust vested in the beneficiaries does not seem to be the determining factor, but rather whether the trustees are conducting a business for profit or gain.” And as in that ease the trust was created to hold certain securities and ultimately liquidate the same and the trustees were not carrying on a business enterprise, it was held that they were not taxable as an association.
In Lansdowne Realty Trust v. Commissioner, 50 F.(2d) 56, 58, this court stated: “We are also of the opinion that the trust was not an association and taxable as a corporation on the ground that it was doing business as such. It is true that the trustees had powers of a broad character, but they did not exercise them and were not carrying on business after the form and manner of a corporation. When the trustees received the property, it had all been leased for a term of five years from March 1, 1920. During this period of five years the trustees were not called upon to seek tenants or to do anything with reference to the property of any consequence except to collect the rents and turn them over to the beneficiaries. By the terms of the lease the lessees were to keep the premises in repair, pay the insurance, and be responsible for all damages connected with the building. It is perfectly apparent that they were not doing business in any sense, during the years 1923 and 1924, and we are. of the opinion that, during the years 1925 and 1926, they were not conducting business after the mode and manner of a corporation, but were doing nothing more than trustees ordinarily would be called upon to perform in the management of trust property.”
In Gardiner v. United States (C. C. A.) 49 F.(2d) 992, 996, the precise question whether in a case where the trustees under the declaration of trust were given broad powers in the way of engaging in business but did not exercise them and engage in business, and where the shareholders had no control over the trustees, the organization was an association or not, was presented. The case was twice argued and this court, on rehearing, held “that the crucial test must be found in what the trustees actually do, not in the mere existence of long unused broad powers,” and reversed our prior decisions and the judgment below, where it had been held that the organization was an association and taxable as such. See, also, Fisk v. United States (D. C.) 60 F. (2d) 665, 667, where, on a like state of facts, Judge Brewster said: “It is now pretty well settled that the test is not what powers or authority reside in the trustees or the shareholders, but, as stated by Judge Anderson in Gardiner v. United States (C. C. A.) 49 F.(2d) 992 at page 996, ‘the crucial test must be found in what the trustees actually do, not in the mere existence of long unused broad powers.’ ”
In each case:
The decision of the Board of Tax Appeals is vacated and the ease is remanded to that Board for further proceedings not inconsistent with this opinion.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_appel1_1_3
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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.
H. C. NELSON, Sidney A. Nelson, and H. C. Nelson Investment Company, Appellants, v. SEABOARD SURETY COMPANY, a corporation, et al., Appellees.
No. 16040.
United States Court of Appeals Eighth Circuit.
Sept. 3, 1959.
Frank J. Hammond, St. Paul, Minn. (Briggs, Gilbert, Morton, Kyle & Ma-cartney, St. Paul, Minn., were with him on the brief), for appellants.
Paul C. Thomas and Frederick A. Col-latz, St. Paul, Minn. (Robert R. Hume and Thomas, Bradford, King & Collatz, St. Paul, Minn., were on the brief), for appellee Seaboard Surety Co.
Robert 0. Sullivan, Philip Stringer, Arthur J. Donnelly, and R. Paul Sharood, St. Paul, Minn., on brief for appellee Borchert-Ingersoll, Inc.
Frank E. Clinite and Charles F. Kelly, Minneapolis, Minn, on brief for appellee Armco Drainage & Metal Products, Inc.
Nunan, Quealy, Colwell & Greffenius, Minneapolis, Minn., on brief for appellee Rocket Transfer, Inc.
Charles J. Foley, Minneapolis, Minn., on brief for appellee J. V. Gleason.
Before GARDNER, Chief Judge, and WOODROUGH and VAN OOSTER-HOUT, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
This is an appeal by H. C. Nelson Investment Company (Investment), H. C. Nelson, and Sidney Nelson (all of whom will sometimes be referred to jointly hereinafter as Nelsons), from final judgment rendered against them in an action commenced by Seaboard Surety Company, a corporation (Seaboard). The case was tried to the court without a jury. The court awarded judgment to Seaboard against the Nelsons and others for $164,-920.79, awarded damages in favor of certain other claimants, and denied the Nelsons’ counterclaims for rentals, conversion, and reformation. Memorandum opinion is reported in Seaboard Surety Company v. H & R Construction Corporation, D.C., 153 F.Supp. 641. The court also filed detailed findings of fact and conclusions of law.
Jurisdiction is based upon diversity of citizenship and the jurisdictional amount.
Seaboard is engaged in the business of writing surety bonds as a compensated surety. H & R Construction Company (H & R) was a building contractor. This litigation arises as a result of perform-anee bonds issued by Seaboard for H & R in connection with eight of its construction contracts. These contracts, listed in the order in which they were signed, are referred to in the evidence as: (1) Sauers, (2) Woodrich, (3) Waseca, (4) Waseca, (5) Normandale, (6) Excelsior, (7) Shakopee, (8) Lurnmus. The first contract is dated March 19, 1952, and the last, April 1, 1954. The first seven bonds were conditioned upon the completion of the work and payment of all claims for labor and material. The last bond, Lum-mus, required the surety to guarantee the completion of the job free of liens. All contract jobs were physically completed. Seaboard was not called upon to make any payments on its bonds as to the first five contracts. H & R failed to pay bills in the alleged amount of $4,471.80 on Excelsior, 865,014.56 on Shakopee, and $28,127.57 on Lurnmus.
Seaboard by this action, among other things:
“(a) Sought to compel all interested creditors of H & R to prove their respective claims arising out of such issuance of surety bonds by Seaboard and H & R.
“(b) Asked judgment against H & R as principal, for the full amount of Seaboard’s liability.
“(c) Claimed that H. C. Nelson and Sidney Nelson (hereinafter ‘the Nelsons’) were partners doing business as H. C. Nelson Investment Co. (hereinafter ‘Investment’) and that Investment was a partner or joint adventurer of H & R and a co-principal upon said bonds. Seaboard claims judgment against Investment for the entire amount adjudged to be payable by H & R to Seaboard.
“(d) Claimed damages against Investment for its alleged breach of certain agreements to furnish funds and equipment for H & R and claimed that such failure resulted in increased liability to Seaboard under its several bonds.
“(e) Alleged that Investment sold and mortgaged various items of equipment belonging to H & R in derogation of Seaboard’s rights in such equipment, and that Investment has diverted monies belonging to H & R.”
H & R defaulted on Seaboard’s claims and has not appealed from the judgment entered against it. There is no question but that Seaboard was required to make substantial payments on the last three bonds it issued because of H & R’s defaults upon its contracts.
The Nelsons admitted that Investment is a partnership composed of H. C. Nelson and his wife, but denied Investment or any of its members had any partnership relations with H & R, and further denied that Sidney Nelson was a partner in Investment. The Nelsons also asserted an affirmative defense to Seaboard’s action, stating that Seaboard, after it had knowledge of the partnership, had elected to deal with H & R alone, and thereby waived any rights it might have against the Nelsons. Investment counterclaimed against Seaboard for rentals of equipment furnished H & R on the bonded jobs and for conversion of various items of machinery and equipment. A number of individual claimants asserted claims for labor and material furnished on the bonded jobs. H & R filed cross-claims against the Nelsons for various sums alleged to be due it.
The facts and issues are complicated and voluminous. The trial lasted 50 days. The printed record consists of 2705 pages. In addition there are numerous exhibits not contained in the record. All issues raised and the facts pertinent thereto cannot be fully discussed without' unduly extending this opinion. We shall attempt to restrict our statement of the issues and facts to those essential for the disposition of this appeal.
The basic issues will be discussed under the following headings in the order listed:
1. Partnership issue.
2. Election issue.
3. Judgment.
4. Other issues.
Before passing to the specific issues just stated, we shall briefly discuss general principles of law applicable to the consideration of all issues.
The trial court held that Minnesota law governs. No one has disputed this holding. It appears that the contracts involved were made in Minnesota and were to be performed in that State. We shall therefore proceed upon the basis that Minnesota law applies.
The findings of fact of a trial judge sitting without a jury should not be set aside unless it is clearly demonstrated that they are without adequate evidentiary support in the record or were induced by an erroneous view of the law. Pacific National Fire Ins. Co. v. Mickelson, 8 Cir., 235 F.2d 425, 428; Pendergrass v. New York Life Ins. Co., 8 Cir., 181 F.2d 136, 138.
1. Partnership issue.
The court held that a partnership or joint venture had been established between H & R and the Nelsons as to the construction contracts giving rise to this controversy. The court in its opinion states that the extensive trial was directed largely to the partnership issue. The court sets out the applicable Minnesota law and summarizes the facts supporting its conclusion.
Seaboard does not claim that the Nelsons held themselves out to be partners. Moreover, there is no substantial evidence to support a partnership by estoppel. Consequently, the real issue is whether the Nelsons and H & R were partners as between themselves.
In Moore v. Thorpe, 133 Minn. 244, 158 N.W. 235, 238, the court states:
“If Kellett Company and the individual defendants were partners as between themselves, they were partners as to third persons. On the other hand, if they were not partners as between themselves, they are not liable as such to plaintiff, as there is no estoppel or holding out in the case. * * *»
In Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 536, 90 L.Ed. 670, the question was whether an alleged partnership was valid for income tax purposes. The validity of the partnership was challenged by the Commissioner. The Supreme Court states that when the question of the existence of a partnership is raised by an outsider, “the-question arises • whether the partners really and truly intended to join together for the purpose of carrying on business- and sharing in the profits or losses or both. And their intention in this respect, is a question of fact, to be determined: from testimony disclosed by their ‘agreement, considered as a whole, and by their conduct in execution of its provisions.” * * *” See 68 C.J.S. Partnership §; 24, p. 443.
There is no arbitrary test for-determining the existence of a partnership. Each case must be determined! upon its own facts. The trial court’s findings must be sustained if the evidence-as a whole shows that the parties had entered into a partnership relation. Wormsbecker v. Donovan Construction Co., 251 Minn. 277, 87 N.W.2d 660, 664 Cyrus v. Cyrus, 242 Minn. 180, 64 N.W.2d 538, 541, 45 A.L.R.2d 1002; Blumberg v. Palm, 238 Minn. 249, 56 N.W.2d 412, 414. In the Blumberg case the court, states (56 N.W.2d at pages 414-415):
“ * * * The cases are rare, however, in which this court has taken upon itself the determination of whether the evidence was within the definitions once a trier of fact in the trial court had made the determination. Most of the cases defining and discussing the elements of a partnership are cases which uphold the finding of a jury or a trial court sitting without a jury. This court has often said that there is no arbitrary test for the existence of a partnership and that, unless the evidence is conclusive, it is a question of fact for the trier of fact. * * ”
In Hansen v. Adent, 238 Minn. 540, 57 N.W.2d 681, 684, it is said:
“M.S.A. § 323.02, subd. 8, defines a partnership as ‘an association of two or more persons to carry on as co-owners a business for profit.’ It is essential to the existence of a partnership that there be a joint contribution to the enterprise and something in the nature of a community of interest. Hammell v. Feigh, 14S Minn. 115, 173 N.W. 570. When parties contribute their experience, their capital, and their energies to a common enterprise, in which they are to share the profits, a partnership may result, notwithstanding an expressed intention not to create such a relationship. Whether or not a partnership exists is a fact question. * - * ”
The trial court in its opinion found that Rohr, the owner of H & R, and the Nelsons agreed that they did not intend to create a partnership relation between themselves. We agree with the trial court that the evidence does not bar the existence of a partnership relation if a partnership legally results from what was said and done by the parties. Intent is an essential element of the partnership relation. It is the intent to do the things that constitute a partnership which determines whether the partnership relation exists. It is the substance and not the form of the arrangement which determines the legal relationship of the contracting parties to each other. McDonald Bros. v. Campbell & Bergeson, 96 Minn. 87, 104 N.W. 760, 761; Randall Co. v. Briggs, 189 Minn. 175, 248 N.W. 752, 754; Hansen v. Adent, supra; 68 C.J.S. Partnership § 10, p. 416. In the McDonald Bros, case, supra, the Minnesota Supreme Court states (at page 761 of 104 N.W.):
“ * * * where a partnership is the legal result of the agreement actually made, parties are partners, even though they have stipulated that they are not to be partners. ‘The intention is ascertained from the whole contract, from the actual result it creates, and not from the fact that the parties denominated it a partnership or may declare a partnership is not intended.’ * * * ”
The sharing of profits is one factor to be considered in determining whether a partnership relation is established. In the McDonald Bros, case, supra, the court states that in some of the early cases the sharing of profits was said to be a conclusive test of the existence of a partnership, but that the sharing of profits alone is no longer regarded as conclusive proof of the existence of a partnership.
Section 323.06, Minnesota Statutes Annotated, provides in part:
“In determining whether a partnership exists, these rules shall apply:
# * * -X- * *
“(4) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business * * *.”
The court in Blumberg v. Palm, supra, says with reference to the quoted statute (at page 415 of 56 N.W.2d):
“ * * * a prima facie case simply means one that prevails in the absence of evidence invalidating it. If there is such evidence, the issue is for the trier of fact. * * ”
Hanson v. Nannestad, 212 Minn. 325, 3 N.W.2d 498, holds that a showing of share in the profits makes out a prima facie case, and that the trial court erred in dismissing the complaint at the close of plaintiff’s evidence on the ground that there was no evidence to support a partnership finding.
The Nelsons, as a basis for reversal, rely largely on T. E. Foley Co. v. McKinley, 114 Minn. 271, 131 N.W. 316. The case lends some support to the Nelsons’ contention, but is factually distinguishable from the present case. Further, in the Foley case, the fact finder, the jury, actually found that no partnership existed. It would therefore seem that the court’s statement that there was no partnership as a matter of law was dicta. The later Minnesota cases, heretofore cited, show that the Minnesota court has almost invariably held in cases where there was a showing of participation in profits that the issue of the existence of a partnership is a fact question and not a question of law.
We are satisfied that the court properly-interpreted the Minnesota law.
We now look to the record to determine if there is substantial evidence to support the court’s finding that a partnership existed.
On March 17, 1952, in connection with the Sauers contract Investment and H & R signed an agreement by which Investment agreed to guarantee bills on the Sauers job up to $10,000 and to lease the necessary equipment. This agreement, among other things, provides:
“It is further agreed and understood by and between the parties hereto, that any profits, and, or losses, after the payment of all outstanding obligations shall be distributed in the following portion or shares:
“To the H. C. Nelson Investment Co. an undivided two-thirds thereof, and to the H. & R. Construction Corporation an undivided one-third thereof. It being understood that the H. C. Nelson Investment Co. equipment rental, and any advancement made by H. C. Nelson Investment Co. shall be an obligation payable to the IT. C. Nelson Co. before the determination of any profits, and/or losses.”
A similar agreement was made on July 7, 1952, covering the Woodrich and Wa-seca jobs, except that this contract provided that H & R and Investment were to share profits and losses equally. There are apparently no written agreements covering sharing of profits and losses on the other construction projects, but the evidence as a whole supports the trial court’s finding to the effect that the arrangement for sharing profits and losses remained in effect as to all subsequent contracts. Such agreement, as heretofore pointed out, contemplated the sharing of losses as well as the sharing of profits. In addition, the court in its opinion, at page 645, lists numerous other findings in support of its conclusion that joint proprietorship and mutuality of control exist. We will not attempt to summarize the evidence supporting such findings. We have, however, examined the record and are satisfied that there is substantial evidence to support the court’s determination that a partnership relation existed between H & R and Investment as to all of the eight construction contracts.
The Nelsons have admitted that Investment is a partnership composed of H. C. Nelson and his wife. Mrs. Nelson is not a party to this action, and her rights and liabilities have neither been discussed nor adjudicated. The determination that H. C. Nelson and Investment are partners of H & R in the projects here involved must be affirmed.
The situation with reference to Sidney Nelson is entirely different. There is no evidence to establish that Sidney Nelson was a partner in Investment. The trial court did not so find. On the contrary, the trial court has found that H. C. Nelson was the real owner of Investment. The evidence shows that the agreements which it is claimed established the partnership relation were between Investment and IT & R. Since it is clear that Sidney Nelson was not a partner in Investment, the partnership agreements between Investment and H & R could not make him a member of the' partnership. Moreover, there is no substantial evidence to support a finding that Sidney Nelson individually ever entered into a partnership relationship with H & R. There is no showing that he was to participate in the profits or losses arising from any of the contracts, or that he made any contribution of capital or contributed any services except in the capacity of an employee. Sidney Nelson is a son of H. C. Nelson. At the time of the commencement of the-Nelsons-H & R relationship, Sidney was attending the University of Minnesota. Prior to the time of his graduation, in-June 1953, he worked part time for H & R and Investment. After graduation he put in full time. He kept H & R’s. books, paid its bills after they had been, approved by Rohr, did some typewriting, and performed other duties. He rendered similar services for his father. During much of the time here involved Sidney was on H & R’s payroll. He also received wages from his father. Mr. Nelson relied to a considerable extent upon Sidney for information and advice, and at times, for his convenience, placed title to various items of machinery in Sidney’s name. As to such transactions it is undisputed that the real ownership of said property was at all times in H. C. Nelson. Seaboard argues that Sidney Nelson would likely inherit from his father and thus receive the benefit of his father’s partnership accumulations. The trial court refers to Sidney Nelson as the “heir apparent.” The possibility that Sidney Nelson might at some future time acquire by gift or inheritance from his father some of the fruits of the contracts here involved affords no basis for determining that he has a present interest in the partnership property or profits.
We find no substantial evidence to support the finding that Sidney Nelson was a partner in any of the relevant transactions. Any judgment entered against Sidney Nelson upon the basis that he is a partner must be reversed.
2. Election issue.
Seaboard as surety signed the performance bond on each of the eight contracts heretofore listed. H & R was the principal on each of said contracts and was the principal named in each of the bonds. Before obligating itself upon the bonds, Seaboard required a written application, which application contained broad provisions indemnifying the surety against loss, such as, an assignment to the surety of all materials, supplies, and equipment to be used on the job, and the transfer to the surety upon default of all payments due on the contract. The application form contains the following language: Seaboard, before executing each bond, insisted upon and obtained an agreement signed by Investment and H & R to the effect that Investment would make available an agreed sum of money and the necessary equipment, no rental to be paid upon the equipment until such time as it was no longer needed on the job. The money to be furnished by Investment to H & R on each job was $10,000, except the amount on Woodrich was $15,000. At least some of the agreements just referred to were prepared by Seaboard, and Seaboard before signing the bond obtained a signed copy of the agreement. Seaboard had initially requested that Investment sign the bond applications as indemnitor, which request was refused. The Nelsons in their answer alleged:
“If co-partnership, firm name must be signed with name of member acting on its behalf, and each member must sign individually as well.”
“ * * * at all material times the plaintiff knew, or by the exercise of proper and reasonable inquiry could have known, of the existence of the alleged relationship between H & R Construction Corporation on the one hand and these defendants on the other hand and knowing of such relationship elected to deal with H & R Construction Corporation alone; that as a result of such knowledge and election plaintiff is precluded and estopped from recovery against these defendants.”
The court held against the Nelsons on this defense. In its opinion the court states (at page 646 of 153 F.Supp.):
“It is true that when a contracting party knows of the existence of a partnership and chooses to deal exclusively with one of the partners and to look to him alone, he may not thereafter have recourse to the other partners for performance of the contract because he will be held to the election he made at the time of contracting. * * * ”
This appears to be a proper statement of the law. Moore v. Thorpe, supra; Southern Surety Co. v. Plott, 4 Cir., 28 F.2d 698.
In order to prevail upon the election defense the Nelsons must prove the existence of the essential elements of such defense, which are, Seaboard’s knowledge of the fact that the partnership existed and its election with such knowledge to rely upon H & R alone. Seaboard contends that actual knowledge of the existence of the partnership is required. It relies upon Tyler v. Waddingham, 58 Conn. 375, 20 A. 335, 8 L.R.A. 657, which so holds, and contends that the Minnesota court in Moore v. Thorpe, supra, adopted such a rule by citing the Tyler case. We do not so read Moore v. Thorpe. The court there states (at page 238 of 158 N.W.):
“ * * * Unless plaintiff knew that the individual defendants were principals in the enterprise, and intended notwithstanding to give exclusive credit to Kellett Company, he may recover of the after-disclosed partner, on the same principle as applies in the case of an undisclosed principal. * * * ”
We find nothing in the court’s opinion to indicate that actual knowledge is required.
Waiver is at least very closely related to election. The Minnesota court has consistently held that constructive knowledge is sufficient to afford the basis for a waiver. Alsleben v. Oliver Corporation, Minn., 94 N.W.2d 354, 358; Carlson v. Doran, 252 Minn. 449, 90 N.W.2d 323, 328; Engstrom v. Farmers & Bankers Life Ins. Co., 230 Minn. 308, 41 N.W. 2d 422, 424.
The court made no specific finding on Seaboard’s knowledge of the partnership. It does state (at page 647 of 153 F. Supp.):
“After the plaintiff realized or suspected that the Nelsons’ position was superior or greater than that of third parties financing H & R and that they were probably silent partners of H & R, it continued the arrangement of issuing the bonds only after H. C. Nelson executed the usual contracts providing for the advance of money to H & R and for the furnishing of equipment to it on each of the jobs. * * *”
From this quotation and the opinion as'a whole, it would appear that the court was of the opinion that the Nelsons had' met the burden of the knowledge element of its defense, and that the court decided' the election issue on the basis that Seaboard did not intend to deal with H & R alone. In any event, we are satisfied that the record conclusively shows that Seaboard had knowledge of the partnership at the time it accepted H & R applications for the Excelsior bond on December 14, 1953, for the Shakopee bond on July 10, 1953, and for the Lummus bond on April 1, 1954. Prior to the execution of these applications Seaboard had received applications for the five earlier bonds, had obtained H & R’s financial statement and had investigated it, and had insisted upon the Investment-H & R agreement as to each contract heretofore referred to.
It would appear that Seaboard would at least be put on inquiry as to what induced the Nelsons to make such a substantial commitment to H & R. Field, Seaboard’s agent, in a letter to Seaboard dated June 24, 1953, stated in part:
“As I told you over the phone, I discussed with Mr. Russ Johnson, an officer of the First National Bank of St. Paul, the comparative wealth of Mr Harry Nelson, who has been the silent partner in the construction company and has signed agreements with us on various jobs.” (Emphasis added.)
Field made an unconvincing effort to explain that in said letter in using the word “partner” he meant “backer.”
The important consideration is the plain meaning of the words used in the letter and not what Field might have intended to say. The letter unambiguously informed Seaboard that Nelson was the silent partner of H & R. After receipt of such letter in June 1953 Seaboard was no longer in a position to claim want of knowledge of the partnership relationship between Nelsons and H & R. At the very least, the letter was sufficient to constitute constructive notice of the partnership. Field admitted that at least by December 1953 he knew the Nelsons were receiving 50 per cent of H & R’s profits.
We find that Seaboard had knowledge of the partnership before it accepted the applications containing the indemnity agreement signed by H & R alone covering the Excelsior, Shakopee, and Lum-mus bonds.
This leaves for consideration the question of whether Seaboard after it had knowledge that the Nelsons were partners of H & R elected to deal exclusively with H & R and look to H & R alone for liability on the bonds and the indemnity agreement contained in the bond applications.
It is undisputed that H & R alone signed such bonds and bond applications. Under some authorities, as pointed out by the trial court, the acceptance of these papers with the signature of H & R alone, under the circumstances here existing, would be sufficient in itself to relieve the Nelsons. See 40 Am.Jur. Partnership, § 160, p. 423; 68 C.J.S. Partnership § 146, p. 581. The court, after stating that the Minnesota courts had not squarely decided this question, expresses the opinion that the Minnesota courts would hold that the entering into of a contract with an agent alone, with knowledge that there is a principal, is not conclusive of an intention not to hold the principal, but that such circumstance is a factor to consider in determining intention. We shall accept this as a permissible conclusion on the present status of Minnesota law. The court then determined that since H & R was not financially responsible it was unreasonable to suppose that Seaboard intended to waive the Nelsons’ liability. However, Field testified that with the financing and leasing agreement obtained from the Nelsons, “We had an agreement here that gave us what the company and we thought was good underwriting agreements. * * * As long as we had these, we had enough protection, we felt, for the company, and we didn’t care what was going on between Nelson and Rohr.”
In such a setting it is entirely reasonable to find that Seaboard voluntarily intended to waive any claim of partnership liability against the Nelsons. The trial court states (at page 647 of 153 F. Supp.):
“ * * * If there had been some reason why the plaintiff might be willing to waive its rights against the Nelsons, that reason and the omission of all reference to the partnership in the written contract would be some evidence of a waiver. * * ”
The court then stated it could find no valid reason for a waiver. We believe that a valid reason for a waiver is clearly apparent. Seaboard’s business is selling bonds. It no doubt desired to obtain the substantial bonding business involved in these transactions and to earn the premiums that would accrue. The Nelsons had refused to sign the bond applications, and it was necessary to take the applications as offered to obtain the business. By the time the last three bonds were issued a uniform practice had been established in handling this account over a period of years. The experience on the earlier bonds appeared to confirm Seaboard’s judgment that the transactions as handled were satisfactory risks.
In Southern Surety Co. v. Plott, supra, a case factually similar to the case now before us, the court states (at page 700 of 28 F.2d) :
“ * * * Where one, with knowledge of a partnership elects to contract with an individual member of the partnership upon that member’s exclusive credit, even though the contract is for the benefit of the partnership, the member contracted with and he alone is liable under the contract. * * *”
Supporting authorities are cited and discussed by the court in a well considered opinion. The court observes that in some earlier cases involving accommodation sureties courts have extended themselves to relieve the surety, and then states (at page 700 of 28 F.2d):
“ * * * In recent times there has developed a class of compensated sureties, with companies doing an extensive surety business for profit and the rules that so generally favored an accommodation surety have necessarily, and as we see it justly, been modified in the direction of being less lenient with the surety. Surely the equities of a situation would be less in the case of a compensated surety than in the case of an accommodation surety. Surety companies sell their credit for a stipulated price, and in equity should be on the same footing as a merchant who sells his goods on credit for a price that pays him a profit.”
Seaboard is an experienced corporate surety, engaged in providing bonds for compensation as a business proposition. Seaboard is entitled to the indemnity it contracted for, but is not under the circumstances of this case entitled to a bonus, a partnership liability which it elected to waive. It did not contract for indemnity from H & R’s partners. Since Seaboard, with knowledge of the partnership, let the matter of obtaining Nelsons’ signatures to the bond applications drop after the Nelsons had refused to sign them and accepted the signature of H & R alone on the bonds and applications, we conclude that the only reasonable inference that can be drawn from the evidence is that Seaboard voluntarily and intentionally elected to deal with and rely upon H & R alone. Seaboard is not entitled to indemnity from the Nelsons for its bond losses. Seaboard is of course entitled to the benefit of the Investment-H & R agreement delivered to it as an inducement for the execution of each of its bonds.
3, Judgment.
With the foregoing principles in mind, we proceed to the consideration of the judgment entered from which this appeal is taken. We shall deal with the component parts of the judgment in the order followed by the trial court, using the paragraph number references assigned by the trial court in its judgment.
1-5. Paragraph 1 awards judgment to Rocket Transfer, Inc., for $1,743.63 with interest for services on the Shakopee job. Paragraph 2 awards judgment to Rocket Transfer, Inc., for $1,805.62 with interest for services on the Lummus job. Paragraph 3 awards judgment to J. V. Gleason for $1,400 with interest. Paragraph 4 awards judgment to Armco Drainage and Metal Products, Inc., for $6,628.03 with interest. Paragraph 5 awards judgment to Wm. H. Ziegler Co., Inc., for $1,245 with interest. All judgments are against H & R, H. C. Nelson, Sidney Nelson, and H. C. Nelson Investment Company. The judgments at paragraphs 1 and 5 are also against Seaboard, based upon its liability upon the Shakopee bond.
The paragraphs 1 to 5 judgments must be reversed as to Sidney Nelson because of our finding that he is not a partner, and must be affirmed as to all other parties. None of the judgment creditors here involved had knowledge of the partnership, and hence the election defense does not apply to their claims.
6. Paragraph 6 awards Seaboard judgment for $164,920.79 with interest against H. C. Nelson, Sidney Nelson, H. C. Nelson Investment Company, H & R, and H. H. Rohr. H & R and H. H. Rohr have not appealed from this judgment so it remains effective as to them. In any event, the judgment against them is fully supported by the evidence. The liability of the Nelsons is based upon the partnership finding. Inasmuch as we have heretofore found that Sidney Nelson is not a partner, the judgment must be reversed as to him. The validity of the judgment against H. C. Nelson and Investment, who were found to be partners of H & R, depends upon the application of the election defense. An examination of the items upon which this paragraph of the judgment is based, which are set out in Conclusion of Law No. 7, shows that the judgment is composed of the following items:
a. Payment by Seaboard to claimants on the Excelsior bond, $4,751.80.
b. Payment by Seaboard to claimants on the Shakopee bond, $65,014.56.
c. Payment to holders of mechanics’ liens on the Lurnmus contract, $28,127.57.
d. Due for use of Seaboard’s three LaPlant-Choate 200’s on the Lurnmus job, $13,750.
e. Payment of judgment awarded Rocket Transfer, Inc., against Seaboard in paragraph 1, $1,743.63.
f. Payment of judgment awarded Wm. H. Ziegler Co., Inc., in paragraph 5, $1,245.
g. For attorneys’ fees and expenses incurred by Seaboard by reason of default in performance of contracts, $50,-288.23.
A careful examination of the law and the evidence leads us to the conclusion that Seaboard is foreclosed by its election to deal with H & R alone from recovering from Investment and H. C. Nelson upon all of the items comprising the paragraph 6 judgment except item d, for machinery use in the amount of $13,750. The judgment will be affirmed as to H. C. Nelson and Investment to the extent of $13,750. The court under this record was warranted in determining that the machinery involved in this item belonged to Seaboard and in making Finding No. XXIII, reading:
“That without the knowledge or consent of plaintiff, defendants H & R and the Nelsons knowingly and intentionally used three LaPlant-Choate 200 pieces of equipment belonging to the plaintiff in the performance of the Lurnmus contract for a total of 1,250 hours for which they have never accounted to the plaintiff. That the reasonable value of the use of said equipment was $11 per hour and that the defendants H & R, H. H. Rohr, H. C. Nelson, Sidney Nelson and the H. C. Nelson Investment Company, and each of them, are indebted to plaintiff in the sum of $13,750 for such use.”
It seems clear that Seaboard’s judgment as to item d is based on wrongful appropriation and use of its machinery, and is not based upon indemnity for losses incurred as a result of the bonds Seaboard issued.
In summary, the judgment rendered in paragraph 6 shall stand in its entirety against H & R and H. II. Rohr, and is reversed in its entirety as to Sidney Nelson. The judgment against II. C. Nelson and Investment is affirmed as to Seaboard’s claim for $13,750 for the wrongful use of its machinery, and is in all other respects reversed. The reversal shall be without prejudice to Seaboard’s
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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songer_weightev
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
HOWARD v. SWAGART et al.
No. 9409.
United States Court of Appeals District of Columbia.
Argued March 12, 3947.
Decided May 5, 1947.
Mr. Earl H. Davis and Mr. A. Arvin. Lynn, both of Washington, D. C., with whom Mr. Martin Mendelsohn, of Washington, D. G, was on the brief, for appellant.
Mr. Austin F. Canfield, of Washington, D. G, with whom Mr. Julian H. Reis, of Washington, D. G, was on the brief, for appellees.
Before GRONER, Chief Justice, and EDGERTON and CLARK, Associate Justices.
CLARK, Associate Justice.
This is an appeal from the action of the District Court of the United States for the District of Columbia entering judgment for appellees, defendants below, and setting aside a verdict of the jury in favor of appellant, plaintiff below, in accordance with Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
Appellant was injured when she was struck by an automobile driven by Elbert W. Cherry, who was neither its owner nor its authorized user. It is necessary to record a detailed account of the facts leading up to Cherry’s securing possession of the car in order to present a complete picture of the case essential to a proper disposition of the appeal, and in order to portray deadly the legal relationship of the several parties involved.
In the afternoon of Thursday, December 7, 1944, Lawrence A. Baker, the owner of a certain maroon Lincoln Zephyr sedan, parked his automobile at the S & H Parking Center located in the 1500 block of Eye Street, Northwest. He had a monthly storage contract with the garage which gave him the privilege of taking his car in and out as he wished, in contrast to the daily customer who paid a per diem rate and was given a claim check on each occasion his car was parked. On this particular instance, Baker instructed the garage employee present to close the car windows because he was going away for a day or two. As required by the garage, he left the key in the ignition switch, but took all other keys.
Customers of the Parking Center, daily and monthly, are not permitted to park the car themselves, but simply drive into the garage through its single entrance, leaving the car for one of the garage’s employees, referred to as hustlers or parking attendants, to park in the place assigned to it on one of the various floors. When a customer calls for his car, he is required to wait on the ground floor until a hustler brings the car down to the garage’s single exit. Both the entrance and the exit are on Eye Street, the entrance at the east end of the garage and the exit at the west end. The garage manager’s office is beside the entrance and the cashier’s office is beside the exit.
During the period here involved, the garage was operated on a 24 hour basis. Between 8:00 o’clock a. m. and 6:00 o’clock p. m., it was in charge of Mr. Wine, the day manager. Mr. Smith, the night manager, was in control the remaining hours. Wine generally had seven or eight employees on duty with him, including parking attendants and car washers. One such car washer was Elbert W. Cherry. Before going off duty, Wine would have the cars belonging to daily customers brought down from the upper floors to the first floor to facilitate the work of the night crew. The monthly cars, which had designated places mostly on the fourth and fifth floors, were brought down only when the owners came for them. Smith had only two employees stay with him part time, a parking attendant named Wyatt Clinton, who came on duty shortly after 5:00 o’clock p. m., and remained until 10 o’clock p. m., and a cashier, who also remained on duty until 10 :00 o’clock p. m.
Clinton, who had been employed by the Parking Center for approximately two months prior to December 7, 1944, worked for the War Department during the day and performed his part time duties at the garage during the evening. Cherry had been employed by the garage two or three weeks before December 7, 1944. He had been sent there by the United States Employment service. At the time he was interviewed for the position by Wine, who at that time was in charge of hiring, firing and supervising employees at the garage, he had with him the standard referral card required by government regulations issued under the Presidential Proclamation governing employment stabilization. He was employed as a day time car washer with the understanding that he would sometimes be called upon to work overtime either to wash cars or to act as a parking attendant. Wine testified that at the time Cherry was hired they accepted all employees referred to them by the United States Employment Service without making any independent investigation as to their background and no independent investigation was made concerning Cherry. He further testified that if he had known of Cherry’s past criminal record he would not have accepted him as an employee.
On the evening of December 7, 1944, Cherry was asked to work overtime washing cars. The wash rack was located on the second floor directly to the rear of the garage exit. During the course of the evening, Smith, the night manager, saw the Baker car near the wash rack. Cherry testified that while he did not see the car there, he heard Smith upbraid Clinton for bringing the car down from its usual spot on the fourth floor, and order him to return it to its proper place. Smith testified that he never followed up to see if his order was carried out.
On this same evening, Cherry and Clinton finished work at 10:00 o’clock p. m., and checked out together. Cherry met his wife and baby who were waiting for him outside the garage and Clinton offered to drive them home. Cherry expressed some doubt as to Clinton’s having a car but Clinton assured him that he had one parked at 16th and Eye Streets. They walked to that intersection where a maroon Lincoln Zephyr sedan was parked. Clinton informed Cherry that he had purchased it from his winnings in the numbers game. The pair took Cherry’s wife and baby home and then returned to Clinton’s home where they had a few drinks after which Cherry walked to his home.
The next morning, Friday December 8, 1944, Cherry, while walking to his work, passed Clinton’s home where the latter was sitting on the steps. The car was parked nearby. Cherry asked Clinton to lend him the car and Clinton agreed. Cherry did not take the car then, but proceeded on to work where he was told by Wine that there was no work for him that day and that he could check out. He then returned for the car, picked up two girls on Ninth Street and while he was driving them about struck appellant with resulting injury. After taking appellant to the hospital, Cherry called Clinton and it was then, according to his testimony, that he first found out the car had been stolen by Clinton.
Appellant named as defendants in her action the present appellees, Swagart and Hartig, who own and operate the S & H Parking Center, and Baker, the owner of the car. The court directed a verdict in favor of Baker at the close of appellant’s evidence and no appeal has been taken as to him. Appellees moved for a directed verdict after appellant’s opening statement, at the close of appellant’s evidence and at the conclusion of all the evidence. These motions were all denied. The jury returned a verdict for appellant for $7,500.00 and judgment was entered thereon. Ap-pellees moved for judgment notwithstanding the verdict and in the alternative, for a new trial. The court overruled the latter motion while granting the motion for judgment notwithstanding the verdict, and ordered that judgment be entered in favor of appellees. This appeal followed.
Giving full effect to the principles established by decisions of the Supreme Court and of this court for reviewing the action of the trial court in granting appellees’ motion for judgment non obstante vere-dicto, we proceed to a determination of whether, as a matter of law, the evidence presented by appellant failed to make a case and, therefore, a verdict in appellees’ favor should have been directed.
Appellant’s position is that under the evidence the jury was warranted in finding that appellees were negligent in three respects, first, in failing to remove the ignition key from the Baker car; second in employing Elbert W. Cherry without investigating him; and third, in failing to provide and maintain adequate supervision and control over the cars left in their custody and control. Appellant further asserts that the jury was warranted in finding that appellees’ negligence in any or all of the above respects proximately resulted in the removal of the Baker car from the premises and the injury to appellant.
Appellant relies on two decisions of this court to support her right to .recover against appellees in this action. In the first of these cases, Ross v. Hartman, we held that an owner of a vehicle was liable to a plaintiff who was injured when struck by the vehicle driven by an intermeddler who wrongfully drove it from a public alley where it had been left by the owner’s agent, unattended, with the key in the ignition switch, in violation of a traffic regulation. In the second of these cases, Schaff v. Claxton, we extended this liability to the owner of a vehicle where his employee left the vehicle unlocked with the key in the ignition in a private parking space beside a restaurant not a “ ‘public space’ within the meaning of the ordinance” requiring vehicles to be locked, and a third party in attempting to move the vehicle injured the plaintiff.
We do not think there is any justification to extend the holdings of these decisions to the circumstances of the case at bar. While such an application is ¿'pssible, it is not practicable or justifiable, and would necessitate, and result in, a strained construction of the legal concepts pertaining to negligence and proximate cause. Dealing with the causation aspect first, this court has defined the proximate cause of an injury to be “that cause which, in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.” S. S. Kresge Co. v. Kenny. The effect of our decisions in the Ross and Schaff cases was that a wilful, malicious and criminal act of an intermeddler was not an “efficient intervening cause” in the circumstances there presented where the action was between the injured party and the owner of the car, and where the owner was held responsible. We are urged, assuming for the moment negligence on the part of appellees, to extend that legal responsibility to a situation where there is added a subsequent intervening cause coming into existence nearly twelve hours after the criminal act which constituted the original intervening cause, and involving not the owner of the vehicle, but his bailee. We feel constrained to oppose such an extension to the law of liability. It cannot fairly be said that this court meant, by the Ross and Schaff decisions, to impose liability on the owner, or here the bailee, of an unlocked car for the negligent action of every person, other than the thief, driving it subsequent to the theft. In the case at bar, the injury to appellant, coming as it did after the car had remained at rest for nearly twelve hours after the original intervening cause and had been set in motion only by a subsequent intervening cause, cannot be held to be the “natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” Milwaukee & St. Paul R. Co. v. Kellogg. There was in this case not a scintilla of evidence to indicate a “succession of events so connected as to make an entire whole, without any new intervening cause.” Munsey v. Webb. We hold that the circumstances existing here are outside the realm of those from which a jury could reasonably find that the negligence of appellees was the proximate cause of appellant’s injury, and the trial court was correct, having submitted the cause to the jury, in setting aside a verdict in appellant’s favor and entering judgment for ap-pellees.
In this disposition of the case, it is not necessary for us to discuss the three acts which appellant contends constituted negligent action on the part of appellees, but because of the character of the proceedings in the trial below resulting in the setting aside of a jury verdict, and the views expressed by the trial court concerning this aspect of the case, we think it desirable to record our own views on the matter. The trial court stated in his opinion : “My holding is that there isn’t enough evidence in this case to which can be applied the law that would justify holding these garage defendants responsible for the subsequent traffic accident and injury to the plaintiff.” With this we agree. Turning to the specific acts alleged we hold that, in this jurisdiction, leaving a car unlocked in a private parking-lot garage does not constitute negligence. It is common knowledge that the standard custom and practice of private parking-lot garages is to require the leaving of the key in the ignition switch of cars parked on the premises. This is not only for the convenience of the garage attendants in moving the car about to allow the parking and removal of other cars, but for the convenience of the car owner in having the car delivered to him as soon as called for, and for the further protection of the car owner in having his vehicle easily removable by the garage attendants in case of fire or other emergency. Appellant has not offered evidence tending to establish a duty in appellees to exercise a higher degree of care than is required of others in this business. This action is not negligence.
Neither do we think that hiring Cherry as a car washer and part time parking attendant without an independent investigation as to his reliability constitutes negligent action in view of the fact that he was taken upon the recommendation of the United States Employment Service. But to carry this point a step further, in alleging this negligence, appellant ignores her own evidence, presented through her witness, Cherry, that it was Clinton, not Cherry, who stole the car. And there was no evidence offered to show otherwise. Appellant did not make Cherry a party defendant in this action, although he was the driver of the car at the time of the accident, but utilized him as a principal witness on whose testimony she heavily relied for support of her claim against appellees. She did not call him as an unwilling or hostile witness under Rule 43, Federal Rules of Civil Procedure, and the record does not indicate that he was so treated. Now, on 'appeal, rather than vouching for his credibility as she is required to do, appellant attempts to discredit the testimony of her own witness that Clinton stole the car, and shape it into an unwarranted conclusion on the part of the jury that Cherry alone took the car, or assisted Clinton in so doing, thus giving support to her allegation that it was negligence on the part of appellees to hire Cherry without an independent investigation of his past. We think appellant failed to support her contention in this respect.
We further are of the opinion that appellant failed to offer sufficient evidence to support her claim that appellees were negligent in failing to provide and maintain adequate supervision and control over the cars left in their custody. Her evidence established that the Baker car was stolen by Clinton sometime before 10:00 o’clock p. m., when Cherry and Clinton left the garage together and proceeded to 16th and Eye Streets where the car was parked. The car was seen in the vicinity of the wash-rack at the garage at approximately 8:30 o’clock p. m. The evidence further established that during these hours, up to 10:00 o’clock p. m., there were on duty at the garage the night manager, Smith, a parking attendant, and a cashier, who was stationed in an office at the garage’s single exit. Appellant cannot overcome her lack of proof on this allegation by asserting, as she does, that there was no evidence offered to show whether or not the cashier was on duty on the night in question. Obviously, the fact that the Baker car was stolen from the garage alone does not constitute' evidence of lack of control or supervision, and appellant has failed in all other respects to show such.
' Thus, it is our view that as a matter of law appellant failed to present evidence of negligence sufficient to make out a case to go to the jury and a directed verdict in appellees’ favor was warranted. It was accordingly not error for the court, having submitted the cause to the jury, to set aside the resulting verdict in behalf of appellant and enter judgment for appellees notwithstanding the verdict.
Affirmed.
It ivas brought out in the evidence that in September, 1944, Cherry was convicted of embezzlement, given a sentence of from six to eight months and put on probation.
The only testimony as to the events happening between this time and the time of the accident was offered by Cherry who appeared as a witness for appellant. Clinton died before the trial.
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; Shewmaker v. Capital Transit Co., 79 U.S.App.D.C. 102, 143 F.2d 142; Simmonds v. Capital Transit Co., 79 U.S.App.D.C. 371, 147 F.2d 570.
78 U.S.App.D.C. 217, 139 F.2d 14, 158 A.L.R. 1370, certiorari denied 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080.
79 U.S.App.D.C. 207, 144 F.2d 532.
66 App.D.C. 274, 86 F.2d 651.
94 U.S. 469, 24 L.Ed. 256.
37 App.D.C. 185, affirmed 231 U.S. 150, 34 S.Ct. 44, 58 L.Ed. 162.
Accordingly, we need not here decide whether the duty, recognized by this court in Medes v. Hornback, 56 App.D.C. 13, 6 F.2d 711, 712, “of one operating a garage in which automobiles are kept in storage for pay to exercise ordinary care by the employment of trustworthy servants” should be extended beyond the bail- or-bailee relationship to the benefit of a third party who is a stranger to the transaction.
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_injunct
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction 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".
OWEN v. HEIMANN.
(Court of Appeals of District of Columbia.
Submitted November 10, 1925.
Decided April 5, 1926.)
No. 1758.
1. Constitutional law <§=93(l) — Patentee has no property right of which he cannot be divested by interference proceedings or suit in equity under statute (Rev. St. § 4904 [Comp. St. § 9449]; Rev. St. § 4915 [Comp. St. § 9460]).
Every patentee takes bis patent with knowledge that his claim to priority may be attacked in manner provided by law, and acquires no property right of which he cannot be divested by interference proceedings, under Rev. St. ■§ 4904 (Comp. St. § 9449), or by suit in equity, under Rev. St. § 4915 (Comp. St. § 9460).
2. Patents <§=l.
Right to patent is purely statutory, with full power in Congress to prescribe on whom and on what terms patent shall issue.
3. Patents <§=97 — Proof that privileges reciprocal to those extended by \oian Act are extended to American citizens by German laws held unnecessary, in view of formal order of Commissioner of Patents, No. 2703, declaring it to be a fact (Comp. St. Ann. Supp. 1923, §§ 943la-943lh).
German Foreign Office having certified German patent laws to United States Patent Office, and Commissioner of Patents having declared by formal order, No. 2703, that privileges reciprocal to those extended by Nolan Act (Comp. St. Ann. Supp. 1923, §§ 9431a-9431h) are extended to American citizens by German laws, no further proof of such fact is necessary by foreign applicant, claiming benefit oi the act.
4. Patents <§=97 — Proof of German citizenship of applicant for patent, claiming benefit of Nolan Act, by attached oath and reference to prior application, held sufficient in interference proceeding (Comp. St. Ann. Supp. 1923, §§ 943!a-943lh).
Proof of German citizenship of applicant ■for patent, claiming benefit of Nolan Act (Comp. St. Ann. Supp. 1923, §§ 9431a-9431h), consisting of oath attached to application and reference to prior application, held sufficient in • interference proceeding.
Appeal from the Commissioner of Patents.
Interference proceeding between William Walter Owen and George Heimann. Prom a decision of the Commissioner of Patents, awarding priority to the latter, the former appeals.
Affirmed.
W. A. Scott and C. M. Candy, both of Chicago, Ill., for appellant.
•Hans V. feriesen and Paul Kolisch, both of New York City, for appellee.
Before MARTIN, Chief Justice, ROBB, -Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.
Certiorari denied 46 S. Ct. 637, 70, L. Ed. —.
SMITH, Acting Associate Justice.
George Heimann, on the 30th of December, 1913, filed an application in Austria for a patent for a semiautomatic or automatic graded service telephone exchange system and telephone substation with graded service facilities. On the 7th of January, 1914, Heimann filed an application in Great Britain to secure a patent for the same invention, and on that application a patent was issued, known as No. 450 of 1914.
On May 7, 1917, William Walter Owen filed an application in the United States Patent Office, praying for a patent to new and useful improvements in “measured service telephone systems.” Owen’s application was granted, and letters patent were issued to him by the Patent Office on October 26,1920.
On the 16th of August, 1921, Elsie Hecht, formerly Heimann, administratrix of the estate of George Heimann, deceased, of Berlin, Germany, filed an application in the Patent Office of the United States in behalf of the estate for letters patent for a semiautomatic or automatic graded service telephone system, claim 29 of which, as amended, corresponded to claim 26 of the patent issued to Owen. Because those claims were substantially the same, and substantially claimed the same invention, an interference was declared on the 3d of August, 1922.
On the ground that Owen’s filing date and consequent constructive reduction to practice was subsequent to December 30, 1913, the date of George Heimann’s Austrian application and the date of his constructive reduction to practice, a motion was made on October 18, 1922, by the applicant, Elsie Hecht, formerly Heimann, to shift the burden of proof to Owen, the senior party. As it appeared from Owen’s preliminary statement that he conceived the subject-matter of the count in interference on or about January 31,1917, and that the invention was constructively reduced to practice on the 7th of May, 1917, the date of filng his application, the motion was granted. Owen declined to assume.the burden of proof imposed upon him by that ruling, and, having failed to make any showing why a judgment on the record should not be entered against him, priority of invention of the subject-matter in issue was awarded by the Examiner of Interferences to the administratrix of the estate of George Heimann, deceased. The Board of Examiners in Chief affirmed the decision of the Examiner of Interferences, and the Board’s decision was affirmed by the Commissioner. Erom the Commissioner’s decision this appeal was taken.
• The appellant in support of his appeal contends (1) that the German citizenship of Heimann was not proven; (2) that no evidence was submitted to the tribunals of the Patent Office, proving or tending to prove, that the German empire or the German republic granted to American citizens rights and privileges substantially the same as those accorded by the Nolan Act; (3) that the Nolan Act did not intend to make, and by its terms did not make, the date of the filing of Heimann’s Austrian application effective as Heimann’s date of invention in the United States; and (4) that to construe the Nolan Act so as to make the date of Heimann’s Austrian application effective in the United States as Heimann’s date of invention, would render the act unconstitutional.
The motion to shift the burden of proof alleged that George . Heimann and Elsie Heeht, administratrix of his estate, were German citizens. Elsie Hecht’s application for a patent and the oath attached thereto filed in the United States Patent Office alleged that she was at the time of filing the application a citizen of the German republic. Her application also averred that George Heimann was at the time of his death a citizen of Germany, and as evidence of his citizenship referred to United States patent No. 1,341,801, the application for which filed by George Heimann on August 28, 1913, recited that he was a subject of the German emperor, residing at Charlottenburg, Berlin, Germany.
The issuance to Owen of a patent by the Patent Office vested in him no property right, of which he could not be deprived by the interference proceedings provided for by section 4904 of the Revised Statutes (Comp. St. § 9449), or by the suit in equity contemplated by section 4915 of the Revised Statutes (Comp. St. § 9460). The right to a patent is purely statutory and Congress has full power to prescribe to whom and upon what terms and conditions a patent shall issue. Every patentee takes his patent with full knowledge that his claim' to priority of invention may be attacked in the manner provided by law and that if 'it be successfully assailed, his patent is rendered worthless without leaving any ground for complaint that his constitutional rights have been invaded. Seror et al. v. Dick, 55 App. D. C. 151, 152, 3 F.(2d) 92; Kling v. Haring, App. D. C.—, 11 F.(2d) 202 (Patent Appeal No. 1739, decided Feb. 1, 1926); Stewart v. Kahn, 11 Wall. 493, 506, 20 L. Ed. 176.
The German patent laws were certified by the German Foreign Office to the United States Patent Office, and the Commissioner of Patents by formal order announced that they accorded to American citizens privileges substantially reciprocal to the privileges granted by the Nolan Act (Comp. St. Ann. Supp. 1923, §§ 9431a-9431h), and that consequently the privileges of the Nolan Act should be extended to German citizens. Commissioner’s Order 2703, 291 O. G. 677. The German patent laws certified by the German office were part of the records of the United States Patent Office, and as they were recognized by an official order, which made it obligatory on patent officials to extend the privileges of the Nolan Act to German citizens, the tribunals of the Patent Office had the right to take judicial notice of such laws, in the same way as judicial, notice is taken of other records of the office. In re Appeals of Drawbaugh, 9 App. D. C. 219, 242, 256, 257, 258; Cain v. Park, 14 App. D. C. 42, 45, 46; Seror v. Dick, supra, 55 App. D. C. at page 152, 3 F.(2d) 92; Scalione v. Bosch et al., App. D. C. —, 12 F.(2d) 171, patent appeal 1824, decided concurrently herewith.
The evidence as to the German citizenship of the applicant and of the inventor, Heimann, may not have been the best evidence, but it was certainly sufficient to establish German citizenship, in the absence of any objection to its competency, and in view of the fact that the opposition to the motion was based on other grounds. See Seror et al. v. Dick, supra, 55 App. D. C. at page 152, 3 F.(2d) 92. We are of the opinion that the German citizenship of the appellee and of George Heimann must, under the circumstances, be taken as established prima facie.
The decision appealed from is affirmed.
Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_circuit
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
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 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_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Plaintiff-Appellee, v. 5.96 ACRES OF LAND, more or less, situated in Skamania County, State of Washington, Knappton Towboat Company, a corporation, and the State of Washington, Department of Natural Resources, Defendants-Appellants.
Nos. 77-1557, 77-2215.
United States Court of Appeals, Ninth Circuit.
March 22, 1979.
J. Lawrence Coniff, Jr., Asst. Atty. Gen. (argued), Olympia, Wash., Robert M. Schaefer (argued), Vancouver, Wash., for defendants-appellants.
Jacques B. Gelin, Atty. (argued), Dept, of Justice, Washington, D.C., for plaintiff-appellee.
Before WRIGHT and ANDERSON, Circuit Judges, and TAKASUGI, District Judge.
The Honorable Robert M. Takasugi, United States District Judge for the Central District of California, sitting by designation.
J. BLAINE ANDERSON, Circuit Judge:
To expedite completion of the Bonneville Second Powerhouse Project, the United States filed this action seeking flowage easements and condemnation of certain lands adjacent to the Columbia River. Appellant Knappton Towboat Company (Knappton) leases aquatic lands from the State of Washington (the State). Pursuant to these leases, Knappton has constructed pilings, dolphins, and dikes in and along the waters near the juncture of the Wind and Columbia Rivers. The district court granted the United States partial summary judgment against Knappton, ruling that no compensation was due for damages that the proposed enlargement of the existing dam would cause to the structures built by Knappton. The court reasoned that since these structures were below the river’s ordinary high-water mark and the permits issued by the Army Corps of Engineers authorizing their construction were revocable at will, the United States’ dominant navigational servitude precluded Knappton’s claim for compensation.
The district judge certified an interlocutory appeal. 28 U.S.C. § 1292(b). We affirm the judgment against Knappton and dismiss the State’s appeal.
I. FACTS
For a small annual rent the State of Washington leases to Knappton aquatic lands located immediately upstream from the Bonneville Dam. Knappton built various pilings, dolphins, and dikes on the leased lands for timber storage. Completion of the Second Powerhouse Project will raise the water level behind the dam thereby weakening the structures Knappton has already built. To preserve them, Knappton must rebuild the structures at considerable expense.
Knappton contends this constitutes a compensable taking of private property under the fifth amendment. The State’s claimed loss is predicated on an anticipated decrease in rental value of its aquatic lands.
II. PROCEEDINGS
The United States filed its Complaint in December 1974. The State and Knappton filed Notices of Appearance in January 1975. The United States moved for partial summary judgment in July 1976, but limited its motion to Knappton's claim. Both Knappton and the State filed memoranda in opposition to the motion. The United States then filed a supplemental memorandum in support of partial summary judgment and again addressed its argument only to Knappton’s claim for compensation for injury to the physical structures.
In a Memorandum and Order filed November 19, 1976, the district court granted partial summary judgment, ruling that the United States had established, as a matter of law, that the Second Powerhouse Project served a navigational purpose, and therefore no compensation was due. The court excluded from its ruling the State’s claim for compensation:
“The court would emphasize that the decision reached here is limited to the facts of this case. The collateral issue raised by the State of Washington, in a case not part of this motion and relating to the river bottom, has not been considered.” (R. 165)
The Order also specified that the court would certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), “should either party so desire.”
Knappton moved the court for certification, and the court entered an order certifying this appeal (R. 167). Knappton then filed a Notice of Appeal and a Cost Bond on Appeal (R. 168-69). The State did not file a notice of appeal or a cost bond, nor did it join in Knappton’s motion for certification.
Both Knappton and the State petitioned this court for leave to file an interlocutory appeal. Neither Petition clearly explains the procedural background of the State’s attempt to appeal. A motions panel of this court granted both Knappton and the State leave to appeal. All parties then submitted briefs and participated in oral argument.
III. APPEAL OF THE STATE OF WASHINGTON
Although a motions panel did grant the State’s Petition, we are free to reconsider its standing on appeal. United States v. Emens, 565 F.2d 1142, 1144 n.2 (CA 9 1977); see United States v. Patrick, 532 F.2d 142, 147 (CA 9 1976).
The State argues that the district court’s ruling that the Bonneville Second Powerhouse Project has a navigational purpose will effectively control the outcome of its claim for compensation. Therefore, the State concludes, it is a proper party to this interlocutory appeal. The district judge apparently disagreed: he specifically reserved for separate consideration the effect of the navigational servitude on the State’s claim. Although the State’s argument is logical, it is premised on the belief that the district court’s ruling and this appeal will establish the navigational servitude as the law of the case.
For reasons discussed infra, we do not reach the navigational servitude issue in considering the appeal of Knappton. We decide Knappton’s appeal on another ground. Thus, the State and Knappton (with respect to other claims for compensation) will be unaffected by this appeal, and they may further develop a factual record and address further arguments to the district court should the United States again assert the navigational servitude as a bar to just compensation.
The appeal of the State of Washington is dismissed. See Libby, McNeill, and Libby v. City National Bank, 592 F.2d 504, slip op. 3918 at 3926, # 75-3218 (CA 9, Nov. 28, 1978) (“A party may appeal only to protect its own interests, and not those of a coparty.”) Insofar as its briefs are pertinent to the issues raised by Knappton, we treat the State as amicus curiae.
IV. THE APPEAL OF KNAPPTON TOWBOAT CO.
Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, expressly forbids the construction of any structure in navigable waters unless authorized by the Secretary of the Army. The United States alleges that the structures built by Knappton were authorized by permits that are revocable at will and therefore Knappton has no property interest cognizable under the fifth amendment.
Knappton points out that the permits are not included in the record. Copies are included in the record, and Knappton has never alleged that permits were not obtained or that the copies inaccurately or incompletely state the attendant conditions. In fact, Knappton’s Memorandum in Response to plaintiff’s Motion for Summary Judgment (R. 38) implicitly admits that permits were obtained. Even in its briefs to this court, Knappton has not denied that permits were obtained. Despite the asserted deficiency in the record, Knappton’s attempt to raise this phantom issue of fact comes too late.
Moreover, if no permits had been obtained, the structures would be unlawful, and their removal would not require compensation.
In the alternative, Knappton contends that issuance of the permits cannot be conditioned on waiver of its fifth amendment right to compensation for damages to the structures. There are two variants to Knappton’s contention, one directed to each of the two pertinent permit clauses (see n.4, supra).
A.
The first variant is that the permits grant Knappton a property right for which it must be compensated, unless the navigational servitude applies. Cf. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (six justices held procedural due process criteria applicable in determining whether good cause existed for termination of federal employee). This misconstrues the effect of the permit: the permit granted Knappton a mere license to build and maintain these structures.
The permits expressly negate the conclusion that the permit holder received any property right. (E. g., “[T]his instrument does not convey any property rights either in real estate or material.” R. 84.) In United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 (1913), the power company had built similar structures pursuant to a revocable permit. The Court denied any compensation to the power company:
“That it did not [by reason of the permit] acquire any right to maintain these constructions in the river [any] longer than the government should continue the license needs no argument.” 229 U.S. at 68, 33 S.Ct. at 674.
This court has held that comparable permits issued for maintaining outdoor signs along the nation’s highways do not require compensation when revoked. In Ryan Outdoor Advertising, Inc. v. United States, 559 F.2d 554 (CA 9 1977), the panel concluded that once the permits were revoked, there was no longer any interest to be compensated. We find no reason to distinguish these cases.
Although these permits were not revoked, we agree with the district court that the effect was identical:
“The direct language of the permit itself is evidence that [Knappton] knew the government could require removal . . . and that it was acquiring no property interest. It would be an anomaly to argue that the government can require the removal of structures within the river without payment of compensation, yet damage done to the same structures by the exercise of the same inherent rights must be compensated.” R. 164-65.
Cf. United States v. Fuller, 409 U.S. 488, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973) (revocable grazing permits could not be considered in determining value of ranch land though permits had not been revoked). This court has impliedly recognized this fact. In a condemnation action, this court rejected evidence of the land’s value as a port site even though permits had been obtained and may have actually been used, and never revoked, to construct improvements on a navigable river. United States v. 87.30 Acres of Land, 430 F.2d 1130 (CA 9 1970). The permits were revocable at will. We agree with their conclusion:
“This type of permit is not such a vested property right as, on termination, requires payment of just compensation under the Fifth Amendment.” 430 F.2d at 1133.
Even if Knappton’s conclusion that the permits are conditioned on waiver of its right to compensation is correct, the Supreme Court’s analysis in United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940), indicates the condition is constitutional. The Court upheld the validity of a condition in a dam license that allowed the United States to acquire the dam in the future for less than fair market value. The Court also stated that the licensee could be required to convey existing riparian rights to the United States at a reduced price in order to secure the right to build a dam, even though payment of full value would be required for these same rights if the government built the dam itself.
B.
Knappton next contends that the exculpatory clause for damages caused by future government operations is invalid.
This court has implicitly rejected the same argument in Pacific Northwest Bell Telephone Co. v. United States, 549 F.2d 1313 (CA 9), cert. denied, 434 U.S. 820, 98 S.Ct. 62, 54 L.Ed.2d 76 (1977) (hereinafter Bell). In that case, the permittee contended the condition conflicted with the waiver of sovereign immunity contained in the Public Vessels Act and the Suits in Admiralty Act. Although the argument here is couched in constitutional and public policy terms, the court’s reasoning is nonetheless applicable.
In Bell, the telephone company had been granted a permit to lay a cable underneath Lake Washington. The permit exculpated the United States from liability for damages that might be caused to the cable by future government operations. While setting buoys for a regatta, a Coast Guard vessel fouled the cable. The telephone company sued the United States for damages; the theory of liability was negligence.
The court upheld the validity of the exculpatory clause. The telephone company had asserted that the condition violated the policy embodied in the statutes waiving sovereign immunity by unfairly favoring the United States solely because of its sovereignty. The court responded:
“This does not serve to place the United States in a position more favorable than that which a private person would occupy . . .. The private person hypothesized in these circumstances is the owner of land from whom an easement is sought by one having no power to compel a grant or demand passage. The question is whether such a private person, in his power to attach conditions to an easement he was not otherwise obliged to grant, is less favored in the law than the United States is here held to be. We do not perceive that he is.
“Finally, we note that holding clause (g) to be unenforceable would do more than relieve Bell of a condition it regards as improper. It would, in effect, operate to render persons incompetent to secure desired benefits by way of contract, since they could no longer effectively commit themselves to conditions they may be entirely willing to assume in order to obtain their permit.”
549 F.2d at 1317.
The State of California argues that the court’s analogy is inapposite because the conditions, in both instances, were imposed, not bargained for at arm’s length. This argument, however, denies the United States the power to place reasonable conditions on private use of public waterways in the same manner as private persons may condition use of their real or personal property. Actually, the government is more constrained. Unlike a private individual, government actions must reasonably further a valid public purpose. See United States v. River Rouge Improvement Co., 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339 (1926); Scranton v. Wheeler, 179 U.S. 141, 21 S.Ct. 48, 45 L.Ed. 126 (1900). An individual property owner may refuse to grant an easement or license as he pleases or condition the grant on any lawful grounds.
In Boston Edison Co. v. Great Lakes Dredge & Dock Co., 423 F.2d 891 (CA 1 1970), the permittee argued that the exculpatory clause violated public policy, relying primarily on Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955). Bisso holds that a tugboat company cannot contractually insulate itself from liability for damages caused by its own negligence when towing another vessel. The court in Boston Edison distinguished Bisso :
“Finally, Edison argues that Clause (g) should be struck down as violative of public policy, relying primarily on Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955). Bisso, however, enunciates a rule of contract law and arises in a context in which the Supreme Court ruled, in substance, that where two parties to a contract are of unequal bargaining power it is against public policy for the stronger of the two parties to force the weaker to accept a clause exculpating the stronger from liability for its own negligence.
“The instant situation is totally distinguishable from Bisso in that Clause (g) does not appear in a contract. The permit in question was neither negotiated for nor sold, but was issued by the Secretary of the Army acting under discretionary authority clearly conferred on him by 33 U.S.C. sec. 1 et seq. If the insertion of such a clause under authority given to the Secretary be now thought to be against public policy, the entity enunciating that a policy clearly contained in a statutory grant of power to the Secretary is no longer held in favor should be the Congress and not this court.”
423 F.2d at 897. We also note that absent here is the special relationship between a tow for hire and a helpless vessel that the court expressly relied on in Bisso. 9 349 U.S. at 91, 75 S.Ct. 629. Compare The Steamer Syracuse, 79 U.S. (12 Wall.) 167, 20 L.Ed. 382 (1870) with Sun Oil Co. v. Dalzell Towing Co., Inc., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932).
We find the panel’s analogy in Bell apposite and follow its reasoning. We hold that “[t]he effect of the condition here imposed is simply to place upon the permittee the risk of damage to the permitted structure.” Id. at 1316. Irrespective of the condition’s validity in a contract setting, it is valid when the United States is discharging its “special duties and responsibilities” over navigable waters.
The State of California also asserts that Bell should be distinguished because Bell relies on the fact that the Coast Guard was serving a navigational purpose. We disagree. The opinion expressly disavows reliance on the United States’ navigational servitude. 549 F.2d at 1317 n.5. Both the permit here and the one in Bell conditioned the license on the permittee assuming the risk of damage caused by government actions in the public interest.
Finally, the State of California invites us to distinguish Bell on the ground that Bell involved a tort action whereas here the government action involves an alleged taking of private property without compensation. We decline. In Bell, the damage was caused by the government’s negligence; by definition, then, the damage was not necessary to further the public interest. Here, the damage was an unavoidable consequence of a project undertaken to further the public good. The policy supporting insulating the government from liability is therefore much stronger in the case at bar.
Finally, we emphasize that, although the district court relied primarily on the navigational servitude, our decision is in keeping with its conclusion regarding the effect of the permits. The question whether this project serves a navigational purpose may be considered by the district court when ruling on the State’s claim for compensation. This, again, is in keeping with the district court’s initial ruling.
The appeal of the State of Washington is DISMISSED. The judgment is AFFIRMED, and the case is REMANDED for further proceedings.
. For purposes of this appeal, we assume the alleged damage could, in other circumstances, constitute a taking of private property. Thus we do not decide whether the anticipated rise in pool level and consequent weakening of these structures is a sufficient encroachment on private property to constitute a “taking” under the fifth amendment. Similarly, we do not decide whether diminution in rental value can constitute a “taking.” Cf. Gibson v. United States, 166 U.S. 269, 275-76, 17 S.Ct. 578, 41 L.Ed. 996 (1897) (alternative ground); Brothers v. United States, - F.2d -, slip op. 459, # 77-3044 (C.A.9, Feb. 8, 1979) (“there is a taking of property when government action directly interferes with or substantially disturbs the owner’s use and enjoyment of the property.”)
. F.R.A.P. Rule 5, 28 U.S.C.A., provides:
“Appeals by Permission Under 28 U.S.C. § 1292(b)
(d) If permission to appeal is granted the appellant shall file a bond for costs .
A notice of appeal need not be filed.
. Ҥ 403. Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, road-stead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.”
33 U.S.C. § 403.
. “[Tjhis permit may be revoked by authority of the Secretary of the Army ... if the Secretary determines that, under the existing circumstances, such action is required in the public interest.” Copy of Permit, R. 84.
The permits also contained an exculpatory clause:
“(j) [T]he United States shall in no way be liable for any damage to any structure or work authorized herein which may be caused by or result from future operations undertaken by the Government in the public interest.” Copy of Permit, R. 85.
Although Knappton contends the present project does not serve a navigational purpose, it does not contend that the project fails to serve a legitimate public interest. Knappton does contend that the Secretary has expanded his authority by changing the wording of these conditions. We have examined the wording in all the permits submitted to the court, including the ones attached to Knappton’s petition for leave to file this appeal and in the regulations promulgated by the Secretary of the Army. In light of the facts and issues raised in this appeal, the variations in wording are immaterial. In each, the government’s power to revoke and its exculpation from liability are clearly stated. See n.6, infra.
. This case also puts to rest Knappton’s contention that conditions unrelated to navigation are invalid per se. See also Zabel v. Tabb, 430 F.2d 199 (CA 5 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971) (Secretary must consider effects other than navigation and may refuse a permit under the Rivers and Harbor Act on conservation grounds). And Knappton’s assertion that the Secretary exceeded his authority in imposing these conditions is unsupported by case law. See id. at 207.
. The condition reviewed in Bell was differently worded, but essentially the same as the condition in the permits issued to Knappton:
“That the United States shall in no case be liable for any damage or injury to the structure or work herein authorized which may be caused by or result from future operations undertaken by the Government for the conservation or improvement of navigation, or for other purposes, and no claim or right to compensation shall accrue from any such damage.”
549 F.2d at 1315. Compare 33 C.F.R. § 209.-130(c)(2)(vii) (1974) with 38 Fed.Reg. 12217 (1973) and 33 C.F.R. § 209.120(g) (1976).
. We granted the State of California leave to file a brief as amicus curiae.
. Any special relationship that exists between the United States and potential users of the nation’s waterways is assured by the requirement that the United States must always act reasonably and in the public interest.
. The district judge in Bell had found that the Coast Guard was negligent per se. 549 F.2d at 1316.
. In Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955), the court grounded its decision on the need:
"(I) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains.” (footnote omitted) 349 U.S. at 91, 75 S.Ct. at 632, 633.
Upholding the validity of the instant clause under these facts jeopardizes neither of these policies. As noted in the text, negligence is not involved. There can be no overreaching in bargaining when, as here, the government grants a gratuitous license.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
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sc_caseorigin
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094
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
UNITED STATES v. ACRI et al.
No. 33.
Argued November 16, 1954.
Decided January 10, 1955.
Charles K. Rice argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack, A. F. Prescott and Fred E. Youngman.
Francis B. Kavanagh argued the cause and filed a brief for Oravitz, respondent. With him on the brief was Israel Freeman.
Mr. Justice Minton
delivered the opinion of the Court.
This case involves the relative priority between an attachment lien and the liens of the United States for unpaid taxes. The District Court found the attachment lien prior to the liens of the United States, and the Court of Appeals affirmed without opinion. We granted certiorari, 347 U. S. 973.
On August 11, 1948, the United--States filed suit in the District Court for the Northern District of Ohio to collect unpaid income taxes for the years 1942-1946 against one Acri and his wife. Acri was at the time in the penitentiary for the murder of one Oravec, whose personal representative, Oravitz, had, on August 6, 1947, in Mahoning County, Ohio, filed an action against Acri for wrongful death. On the same date, certain cash and bonds of Acri, which were in his safety deposit box in the Dollar Savings and Trust Company, were attached by Oravitz. The box was not opened until September 11, 1948, after the bank had been made guardian of Acri, at which time an inventory was filed. The personal representative, Oravitz, and the bank, as guardian of Acri, were made parties to the Government’s suit.
On January 19, 1949, the personal representative of the murdered man recovered judgment against Acri in the sum of $18,500. In the meantime, on November 18, 1947, after the issuance of the writ of attachment, but more than a year before the judgment in the main action for wrongful death, the assessment lists for unpaid income taxes of Acri and his wife for the years 1942-1946 were received in the office of the Collector of Internal Revenue. On November 19, 1947, demand for payment was mailed to Acri. On November 21, 1947, a notice of the tax liens was filed in the office of the Recorder in Mahoning County, Ohio, which is the residence of the defendants and the location of the Acris’ property, and the place where the action for wrongful death was begun. Notice and levy of the tax liens were served upon the Dollar Bank. It was stipulated that the only question involved was the relative priority of the attachment lien of the personal representative and the tax liens of the United States.
The issue here is identical with that in United States v. Security Trust Co., 340 U. S. 47. There the question was stated as follows:
“The question presented here is whether a tax lien of the United States is prior in right to an attachment lien where the federal tax lien was recorded subsequent to the date of the attachment lien but prior to the date the attaching creditor obtained judgment.” 340 U. S., at 48.
Our answer here is the same as in the Security Trust Company case and for the same reasons.
The relative priority of the lien of the United States for unpaid taxes is, as we said in United States v. Waddill Co., 323 U. S. 353, 356, 357; Illinois v. Campbell, 329 U. S. 362, 371; United States v. Security Trust Co., 340 U. S. 47, 49, always a federal question to be determined finally by the federal courts. The state’s characterization of its liens, while good for all state purposes, does not necessarily bind this Court. United States v. Waddill Co., 323 U. S. 353, at 357; United States v. Gilbert Associates, 345 U. S. 361. Therefore, the fact that the Ohio courts had designated an attachment lien “an execution in advance,” Rempe & Son v. Ravens, 68 Ohio St. 113, 67 N. E. 282, and treated it as a perfected lien at the time of attachment, does not bind this Court. We must look at the circumstances as we did in the Waddill case, where the Virginia court had held a landlord’s lien was fixed, specific, and not inchoate. This Court, after examining the facts, found otherwise. In Gilbert Associates, the New Hampshire court had held that the assessment of a tax was a judgment and the United States’ lien for taxes was not valid against the tax assessment made by the town within the meaning of § 3672 of the Internal Revenue Code. We held that although New Hampshire might treat its tax assessments as judgments for state purposes, the assessment of the tax was not a judgment within the meaning of § 3672. We hold here that the attachment lien in Ohio is for federal tax purposes an inchoate lien because, at the time the attachment issued, the fact and the amount of the lien were contingent upon the outcome of the suit for damages.
In argument it was pointed out that the statute of California involved in the Security Trust case was different because California courts had held an attachment lien to be inchoate and a mere notice of a more perfect lien to come, while Ohio courts had held it to be an execution in advance and a lien perfected as of the time of attachment. This distinction is immaterial for purposes of federal law. This case is not to be distinguished from United States v. Security Trust Co., 340 U. S. 47, and the judgment is
Reversed.
“Such lien shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the collector . . etc.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
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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
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043. Colorado U.S. District Court
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045. Delaware U.S. District Court
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047. Florida Middle U.S. District Court
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050. Georgia Middle U.S. District Court
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053. Guam U.S. District Court
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055. Idaho U.S. District Court
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071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
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074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
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081. Nevada U.S. District Court
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095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
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099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
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114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_initiate
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
BLANCH et al. v. CORDERO, Auditor, et al.
No. 4451.
United States Court of Appeals First Circuit.
March 22, 1950.
Arturo O’Neill, Hato Rey, P. R., for appellants.
Melvin Richter, Attorney, Department of Justice, Washington, D. C. (H. G. Morison, Assistant Attorney General, Paul A. Sweeney and Richard P. Williams, III, Attorneys, Department of Justice, Mastín G. White, Solicitor, Department of the Interior, Irwin W. Silverman, Chief Counsel, Division of Territories and Island Possessions, Department of the Interior, and Shirley Ecker Boskey, Attorney, Department of the Interior, all of Washington, D. C., on the brief), for appellees.
MAGRUDER, Chief Judge, and MARIS (by special assignment) and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
This is an appeal from a judgment of the Supreme Court of Puerto Rico affirming a judgment of the District Court for the Judicial District of San Juan dismissing a complaint praying for the issuance of a writ of mandamus directed to the insular Auditor and the insular Treasurer. The plaintiffs allege that they were all officers or employees of the People of Puerto Rico on July 1, 1932, whose salaries were specified in the budget bill enacted by the Legislature of Puerto' Rico for the fiscal year beginning on July 1, 1932 and ending on June 30, 1933; and that their salaries as so specified were reduced by the governor of Puerto Rico and they were paid the salaries as so reduced for the above fiscal year. The object of these proceedings, which were instituted on June 16, 1947, is to recover the difference between the salaries as originally provided in the budget bill and the reduced salaries actually paid on the ground that the governor is without authority under the Organic Act to reduce any item of appropriation of money made by the legislature.
Section 34 of the Organic Act, 39 Stat. 960, 961, 48 U.S.C.A. § 822 et seq., after provisions with respect to the enactment of legislation and the veto power, provides: “If any bill presented to the governor contains several items of appropriation of money, he may object to one or more of such items, or any part or parts, portion or portions thereof, while approving of the other portion of the bill.”
It is contended that this language, while giving the governor power to eliminate or strike any item or part or portion of an appropriation bill, does not give the governor the power to' scale down or reduce any item of appropriation of money made by the legislature. The contention rests upon a detailed grammatical analysis of the language employed. It is said that the word “thereof” is defined in the dictionaries as meaning “of that” or “of it”, wherefore it must refer to an antecedent in a singular form, and the only antecedent in that form in the sentence under consideration is the word “bill”. Thus it is said that the language of the Organic Act quoted above should be read as authorizing the governor to veto any item or items, or any part or parts, portion or portions of the. bill, but not as authorizing him to veto any part or parts, portion or portions of an item in the bill.
The contention that the .word “thereof” has reference to the word “bill” in the first part of the sentence quoted above, instead of to the word “items” repeated therein twice subsequently, was rejected after full consideration by the Supreme Court of Puerto Rico in De la Rosa v. Winship, 47 P.R.R. 312, and again in Leon v. Fitzsimmons, 61 P.R.R. 340. And in the latter case on appeal, Fitzsimmons v. Leon, 1 Cir., 141 F.2d 886, 888, this court brushed it aside in a dictum in the course of holding that the power to object to an item in a general appropriation bill did not confer power to reduce the amount of the salary set for an insular official in antecedent legislation establishing his office. We now reject the contention categorically.
It may be that “thereof” usually refers to a singular antecedent, but we are not aware that its reference must always be to such an antecedent. At any rate we see no grammatical objection to the use of the word as referring to a plural, and indeed in Commonwealth v. Bralley, 3 Gray. 456, 69 Mass. 456, it was construed by the Supreme Judicial Court of Massachusetts (Shaw, C. J.), apparently without thought of any. grammatical impediment, as having ■ reference to “spirituous or intoxicating liquors” in a statute making it a crime to sell such commodities “without being duly appointed or authorized.”
Furthermore statutes are to be construed primarily with an eye to the legislative intent, rather than with an eye primarily to the niceties and refinements of English grammar, and so construing the sentence we think that Congress clearly meant to empower the insular governor to scale down, as well as to reject altogether, any item in a money bill. Certainly the sentence so reads at first glance, as the appellant concedes, and this ordinary reading is reinforced by legislative history, for it appears that as the Act was originally introduced it gave the governor power merely to object to “one or more of such items,” but that it was amended on the floor of the Senate to its present phraseology by the insertion after the word “items” of the words “or any part or parts, portion or portions thereof.” 54 Cong.Rec. 2256. There is no illuminating discussion of this amendment available, but the amendment is meaningless surplusage unless it was intended to give power to veto a part or portion of an item, in other words to reduce it, as well as to strike it out altogether. Power to veto, parts or portions of an appropriation bill adds nothing to the power to veto any or all of its individual items. Perhaps the amendment might be construed as adding power to veto generally entire sections or subdivisions of an appropriation bill, if such a bill should be subdivided into parts or portions, but we do not think this meaning could have been intended, for the Organic Act does not require that budget bills shall be subdivided into parts and portions. Indeed it does not in any way .specify the form in which general appropriation bills shall be cast. It merely provides in § 34, supra, that “The governor shall submit at the opening of each regular session of the legislature a budget of receipts and expenditures, which shall be the basis of the ensuing biennial appropriation bill”, and that such bills shall originate in the house of representatives and shall embrace only appropriations for the ordinary expenses of the three basic departments of the government, interest on the public debt, and appropriations for public schools.
The foregoing considerations leave no doubt in our minds that under the Organic Act the governor has the power to reduce, as well as to strike, items in an appropriation bill.
Moreover, the question of laches has been decided adversely to the plaintiffs by both insular courts and we see no reason to disturb this conclusion of local law on the ground that it is “inescapably wrong” or “patently erroneous.”
The judgment of the Supreme Court of Puerto Rico is affirmed.
. The contention was advanced in both courts below, but has been abandoned on this appeal, that for reasons we need not detail no valid budget bill for the fiscal year 1932-1933 was ever enacted, with the result that the salaries of the plaintiffs as fixed in the preceding budget bill should have been paid pursuant to the provision of § 34 of the Organic Act, infra, to the effect that “If at the termination of any fiscal year the appropriations necessary for the support of the government for the ensuing fiscal year shall not have been made, the several sums appropriated in the last appropriation bills for the objects and purposes therein specified, so far as the same may be applicable, shall be deemed to be re-appropriated item by item; and until the legislature shall act in such behalf the treasurer may, with the advice of the governor, make the payments necessary for the purposes aforesaid.”
. We are told that the Supreme Court of Puerto Rico rejected it a third time in the recent case of Ferrao v. Cordero, 67 P.R.R. -, not yet translated into English.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
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sc_issuearea
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J
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
NATIONAL FEDERATION OF INDEPENDENT BUSINESS et al. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, et al.
No. 11-393.
Argued March 26, 27, 28, 2012
Decided June 28, 2012
Roberts, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-C, in which Ginsburg, Breyer, Sotomayor, and ELagan, JJ., joined; an opinion with respect to Part IV, in which Breyer and Kagan, JJ., joined; and an opinion with respect to Parts III-A, III-B, and III-D. Ginsburg, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Sotomayor, J., joined, and in which Breyer and Kagan, JJ., joined as to Parts I, II, III, and IV, post, p. 589. Scalia, Kennedy, Thomas, and Alito, JJ., filed a dissenting opinion, post, p. 646. Thomas, J., filed a dissenting opinion, post, p. 707.
Robert A. Long, Jr., by invitation of the Court, 565 U. S. 1048, argued the cause in No. 11-398 (Anti-Injunction Act) as amicus curiae in support of vacatur. With him on the briefs were Emin Toro, Mark W. Mosier, and Henry B. Liu.
Solicitor General Verrilli argued the cause for petitioners in No. 11-398 (Anti-Injunction Act). With him on the briefs were Assistant Attorney General West, Deputy Solicitor General Kneedler, Principal Deputy Assistant Attorney General DiCicco, Deputy Assistant Attorney General Brink-mann, Leondra R. Kruger, Mark B. Stern, Alisa B. Klein, Joel McElvain, M. Patricia Smith, William B. Schultz, and Kenneth Y. Choe.
Gregory G. Katsas argued the cause for respondents in No. 11-398 (Anti-Injunction Act). With him on the briefs for private respondents were Michael A. Carvin, C. Kevin Marshall, Hashim M. Mooppan, Karen R. Earned, and Randy E. Barnett. On the briefs for state respondents were Paul D. Clement, Erin E. Murphy, Conor B. Dugan, Erin M. Hawley, Pamela Jo Bondi, Attorney General of Florida, Scott D. Makar, Solicitor General, and Louis F. Hubener, Timothy D. Osterhaus, and Blaine H. Winship, Luther Strange, Attorney General of Alabama, Michael C. Geraghty, Attorney General of Alaska, Janice K. Brewer, Governor of Arizona, and Tom Horne, Attorney General, John W. Suth-ers, Attorney General of Colorado, Samuel S. Olens, Attorney General of Georgia, Lawrence G. Wasden, Attorney General of Idaho, Gregory'F. Zoeller, Attorney General of Indiana, Terry Branstad, Governor of Iowa, Derek Schmidt, Attorney General of Kansas, James D. “Buddy” Caldwell, Attorney General of Louisiana, William J. Schneider, Attorney General of Maine, Bill Schuette, Attorney General of Michigan, Michael B. Wallace, by and through Phil Bryant, Governor of Mississippi, Jon Bruning, Attorney General of Nebraska, and Katherine J. Spohn, Brian Sandoval, Governor of Nevada, Wayne Stenehjem, Attorney General of North Dakota, Michael DeWine, Attorney General of Ohio, and David B. Rivkin and Lee A. Casey, Thomas W Corbett, Jr., Governor of Pennsylvania, and Linda L. Kelly, Attorney General, Alan Wilson, Attorney General of South Carolina, Marty J. Jackley, Attorney General of South Dakota, Greg Abbott, Attorney General of Texas, and Bill Cobb, Deputy Attorney General, Mark L. Shurtleff, Attorney General of Utah, Robert M. McKenna, Attorney General of Washington, J B. Van Hollen, Attorney General of Wisconsin, and Matthew Mead, Governor of Wyoming.
Solicitor General Verrilli argued the cause for petitioners in No. 11-398 (Minimum Coverage Provision). With him on the briefs were Assistant Attorney General West, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Brinkmann, Joseph R. Palmore, Mr. Stern, Ms. Klein, Ms. Smith, Mr. Schultz, and Mr. Choe.
Mr. Clement argued the cause for state respondents in No. 11-398 (Minimum Coverage Provision). With him on the brief for respondents Florida et al. were Ms. Murphy, Ms. Bondi, Attorney General of Florida, Mr. Makar, Solicitor General, and Mr. Hubener, Mr. Osterhaus, and Mr. Winship, Mr. Strange, Attorney General of Alabama, Mr. Geraghty, Attorney General of Alaska, Ms. Brewer, Governor of Arizona, and Mr. Horne, Attorney General, Mr. Suthers, Attorney General of Colorado, Mr. Olens, Attorney General of Georgia, Mr. Wasden, Attorney General of Idaho, Mr. Zoel-ler, Attorney General of Indiana, Mr. Branstad, Governor of Iowa, Mr. Schmidt, Attorney General of Kansas, Mr. Caldwell, Attorney General of Louisiana, Mr. Schneider, Attorney General of Maine, Mr. Schuette, Attorney General of Michigan, Mr. Wallace, by and through Mr. Bryant, Governor of Mississippi, Mr. Bruning, Attorney General of Nebraska, and Ms. Spohn, Mr. Sandoval, Governor of Nevada, Mr. Stenehjem, Attorney General of North Dakota, Mr. De-Wine, Attorney General of Ohio, and Mr. Rivkin and Mr. Casey, Mr. Corbett, Governor of Pennsylvania, and Ms. Kelly, Attorney General, Mr. Wilson, Attorney General of South Carolina, Mr. Jackley, Attorney General of South Dakota, Mr. Abbott, Attorney General of Texas, and Mr. Cobb, Deputy Attorney General, Mr. Shurtleff, Attorney General of Utah, Mr. McKenna, Attorney General of Washington, Mr. Van Hollen, Attorney General of Wisconsin, and Mr. Mead, Governor of Wyoming. Mr. Carvin argued the cause for private respondents in No. 11-398 (Minimum Coverage Provision). With him on the brief were Mr. Katsas, Mr. Marshall, Mr. Mooppan, Ms. Harned, and Mr. Barnett.
Mr. Clement argued the cause and filed briefs for petitioners in Nos. 11-393 and 11-400 (Severability). With him on the briefs for state petitioners were Ms. Murphy, Ms. Bondi, Attorney General of Florida, Mr. Makar, Solicitor General, and Mr. Hubener, Mr. Osterhaus, and Mr. Winship, Mr. Strange, Attorney General of Alabama, Mr. Geraghty, Attorney General of Alaska, and Richard Svobodny, Acting Attorney General, Ms. Brewer, Governor of Arizona, and Mr. Horne, Attorney General, Mr. Suthers, Attorney General of Colorado, Mr. Olens, Attorney General of Georgia, Mr. Wasden, Attorney General of Idaho, Mr. Zoeller, Attorney General of Indiana, Mr. Branstad, Governor of Iowa, Mr. Schmidt, Attorney General of Kansas, Mr. Caldwell, Attorney General of Louisiana, Mr. Schneider, Attorney General of Maine, Mr. Schuette, Attorney General of Michigan, Mr. Wallace, by and through Mr. Bryant, Governor of Mississippi, Mr. Bruning, Attorney General of Nebraska, and Ms. Spohn, Mr. Sandoval, Governor of Nevada, Mr. Steneh-jem, Attorney General of North Dakota, Mr. DeWine, Attorney General of Ohio, and Mr. Rivkin and Mr. Casey, Mr. Cor-bett, Governor of Pennsylvania, and Ms. Kelly, Attorney General, Mr. Wilson, Attorney General of South Carolina, Mr. Jackley, Attorney General of South Dakota, Mr. Abbott, Attorney General of Texas, and Mr. Cobb, Deputy Attorney General, Mr. Shurtleff, Attorney General of Utah, Mr. Mc-Kenna, Attorney General of Washington, Mr. Van Hollen, Attorney General of Wisconsin, and Mr. Mead, Governor of Wyoming. Mr. Carvin, Mr. Katsas, Mr. Marshall, Mr. Mooppan, Ms. Harned, and Mr. Barnett filed briefs for private petitioners.
Deputy Solicitor General Kneedler argued the cause for respondents in Nos. 11-393 and 11-400 (Severability). With him on the briefs were Solicitor General Verrilli, Assistant Attorney General West, Deputy Assistant Attorney General Brinkmann, Mr. Palmore, Mr. Stern, Ms. Klein, Ms. Smith, Mr. Schultz, and Mr. Choe.
H. Bartow Farr III, by invitation of the Court, 565 U. S. 1048, argued the cause in Nos. 11-393 and 11-400 (Severability) and filed a brief as amicus curiae in support of the judgment below.
Mr. Clement argued the cause for petitioners in No. 11-400 (Medicaid). With him on the briefs were Ms. Murphy, Ms. Bondi, Attorney General of Florida, and Mr. Makar, Solicitor General, and Mr. Hubener, Mr. Osterhaus, and Mr. Winship, Mr. Strange, Attorney General of Alabama, Mr. Svobodny, Acting Attorney General of Alaska, Ms. Brewer, Governor of Arizona, and Mr. Horne, Attorney General, Mr. Suthers, Attorney General of Colorado, Mr. Olens, Attorney General of Georgia, Mr. Wasden, Attorney General of Idaho, Mr. Zoeller, Attorney General of Indiana, Mr. Branstad, Governor of Iowa, Mr. Schmidt, Attorney General of Kansas, Mr. Caldwell, Attorney General of Louisiana, Mr. Schneider, Attorney General of Maine, Mr. Schuette, Attorney General of Michigan, Mr. Bruning, Attorney General of Nebraska, and Ms. Spohn, Mr. Sandoval, Governor of Nevada, Mr. Stenehjem, Attorney General of North Dakota, Mr. DeWine, Attorney General of Ohio, and Mr. Rivkin and Mr. Casey, Mr. Corbett, Governor of Pennsylvania, and Ms. Kelly, Attorney General, Mr. Wilson, Attorney General of South Carolina, Mr. Jackley, Attorney General of South Dakota, Mr. Abbott, Attorney General of Texas, and Mr. Cobb, Deputy Attorney General, Mr. Shurtleff, Attorney General of Utah, Mr. McKenna, Attorney General of Washington, Mr. Van Hollen, Attorney General of Wisconsin, and Mr. Mead, Governor of Wyoming.
Solicitor General Verrilli argued the cause for respondents in No. 11-400 (Medicaid). With him on the brief were Assistant Attorney General West, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Brinkmann, Ms. Kruger, Mr. Stern, Ms. Klein, Ms. Smith, Mr. Schultz, and Mr. Choe.
Together with No. 11-398, Department of Health and Human Services et al. v. Florida et al., and No. 11-400, Florida et al. v. Department of Health and Human Services et al., also on certiorari to the same court.
Briefs of amici curiae were filed in No. 11-398 (Anti-Injunction Act) for the American Center for Law & Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Walter M. Weber, Edward L. White III, and Erik M. Zimmerman; for the Cato Institute by Ilya Shapiro; for the Center for the Fair Administration of Taxes by A Lavar Taylor; for Liberty University, Inc., et al. by Mathew D. Staver, Anita L. Staver, Stephen M. Crampton, and Mary E. McAlister; for the State Chambers of Commerce et al. by William V. Custer; for Tax Law Professors by Michael B. de Leeuw; and for Mortimer Caplin et al. by Alan B. Morrison and Brian Wolfman.
Briefs of amici curiae urging reversal in No. 11-398 (Minimum Coverage Provision) were filed for the State of Maryland et al. by Douglas F. Gansler, Attorney General of Maryland, John B. Howard, Jr., Deputy Attorney General, William F. Brockman, Acting Solicitor General, and Joshua N. Auerbach, Stephen M. Ruckman, and Sarah W. Rice, Assistant Attorneys General, and by the Attorneys General for their respective jurisdictions as follows: Kamala D. Harris of California, George Jepsen of Connecticut, Joseph R. Biden III of Delaware, Irvin B. Nathan of the District of Columbia, David M. Louie of Hawaii, Lisa Madigan of Illinois, Tom Miller of Iowa, Gary K. King of New Mexico, Eric T. Schneiderman of New York, John R. Kroger of Oregon, William H. Sorrell of Vermont, and Vincent F. Frazer of the Virgin Islands; for AARP by Thomas C. Goldstein, Kevin K. Russell, Stuart R. Cohen, Stacy Canan, and Michael Schuster; for Advocacy for Patients with Chronic Illness, Inc., by Jennifer C. Jaff; for the American Association of People with Disabilities et al. by Rochelle Bobrojf and Simon Lazarus; for the American Cancer Society et al. by Mary P. Rouvelas and F. Sheffield Hale; for the American Federation of Labor and Congress of Industrial Organizations by Lynn K. Rhinehart, James B. Coppess, and Laurence Stephen Gold; for the American Nurses Association et al. by Ian Millhiser; for the California Endowment by Kathleen M. Sullivan, William B. Adams, and Crystal Nix Hines; for the California Public Employees’ Retirement System by Peter H. Mixon; for Constitutional Law Scholars by Andrew J. Pincus, Gillian E. Metzger, and Trevor W Morrison; for Health Care for All, Inc., et al. by Wendy E. Parmet and Lorianne M. Sainsbury-Wong; for Health Care Policy History Scholars by Geoffrey F. Aronow; for the Jewish Alliance for Law & Social Action et al. by Andrew M. Fischer; for the Lambda Legal Defense and Education Fund, Inc., et- al. by Douglas Hallward-Driemeier, Susan L. Sommer, Hayley J. Gorenberg, and Jon W. Davidson; for the NAACP Legal Defense & Educational Fund, Inc., et al. by John Payton, Debo P Adegbile, Elise C. Boddie, ReNika C. Moore, Joshua Civin, Steven R. Shapiro, and Lisa M. Bornstein; for the National Women’s Law Center et al. by Melissa Hart, Marcia D. Greenberger, and Judith G. Waxman; for Prescription Policy Choices et al. by Michael Kevin Outterson; for the Service Employees International Union et al. by Scott A. Kronland, Jonathan Weissglass, P. Casey Pitts, Judith A. Scott, Walter Kamiat, Mark Schneider, and Patrick J. Szymanski; for the Small Business Majority Foundation, Inc., et al. by Douglas L. McSwain; for State Legislators from all Fifty States et al. by Douglas T Kendall and Elizabeth B. Wydra; and for Senate Majority Leader Harry Reid et al. by Walter Dellinger, Christopher J. Wright, and Timothy J. Simeone.
Briefs of amici curiae urging affirmance in No. 11-398 (Minimum Coverage Provision) were filed for the State of Oklahoma by E. Scott Pruitt, Attorney General of Oklahoma, and Patrick R. Wyrick, Solicitor General; for the Commonwealth of Virginia ex rel. Kenneth T. Cuccinelli II by Mr. Cuccinelli, Attorney General of Virginia, pro se, E. Duncan Getchell, Jr., Solicitor General, Charles E. James, Jr., Chief Deputy Attorney General, and Wesley G. Russell, Jr., Deputy Attorney General; for Missouri Attorney General Chris Koster by Mr. Roster, pro se, and Jeremiah J. Morgan, Deputy Solicitor General; for the American Catholic Lawyers Association, Inc., by Bertram P. Goltz, Jr.; for the American Center for Law & Justice et al. by Mr. Sekulow, Mr. Roth, Mr. May, Mr. Henderson, Mr. Weber, Mr. White, and Mr. Zimmerman; for the American College of Pediatricians et al. by Nikolas T. Nikas, Dorinda C. Bordlee, Mark L. Rienzi, Mailee R. Smith, Denise M. Burke, Steven H. Aden, Matthew S. Bowman, and Catherine W. Short; for the American Legislative Exchange Council by John P. Elwood and Seth L. Cooper; for the Association of American Physicians and Surgeons, Inc., et al. by David P. Felsher and Andrew L. Schlafly; for the Authors of The Origins of the Necessary and Proper Clause et al. by David B. Kopel; for Blue Cross and Blue Shield of Massachusetts, Inc., by Dean Richlin, Robert E. Toone, and Joseph Halpern; for the Catholic Vote et al. by Patrick T. Gillen; for the Cato Institute et al. by Robert A. Levy, Ilya Shapiro, and Timothy Sandefur; for the Caesar Rodney Institute by Grant M. Lally; for the Center for Constitutional Jurisprudence et al. by Christopher R. J. Pace, John C. Eastman, Anthony T. Caso, Edwin Meese III, Todd F. Gaziano, Brian C. Baker, Carrie Severino, and Manuel S. Klausner; for Does4PatientCare by Erik S. Jaffe and John Hoff; for Economists by Steven G. Bradbury, Steven A. Engel, and Michael H. Park; for the Employer Solutions Staffing Group LLC by Rebecca J. Levine; for the HSA Coalition, Inc., et al. by Ed R. Haden; for the Independent Women’s Forum by Kevin J. Hasson; for Judicial Watch, Inc., by Paul J. Orfanedes; for Members of the United States Senate by Ms. Severino; for the Mountain States Legal Foundation by James M. Manley and Steven J. Lechner; for the Montana Shooting Sports Association, Inc., by Quentin M. Rhoades; for Single Payer Action et al. by Oliver B. Hall; for the Tax Foundation by Joseph D. Henchman; for the Washington Legal Foundation et al. by Ilya Somin, Daniel J. Popeo, and Cory L. Andrews; for the 1851 Center for Constitutional Law by Christopher P. Finney and Curt C. Hartman; for Speaker of the House John Boehner by Ms. Severino; for Virginia Delegate Bob Marshall et al. by William J Olson, Herbert W. Titus, John S. Miles, and Gary G. Kreep; for Sen. Rand Paul by Bridget Maloney Bush; and for Stephen M. Trattner by Mr. Trattner, pro se.
Briefs of amici curiae were filed in No. 11-398 (Minimum Coverage Provision) for the Commonwealth of Massachusetts by Martha Coakley, Attorney General, and Thomas M. O’Brien, Daniel J. Hammond, and Emi-liano Mazlen, Assistant Attorneys General; for the Governor of Washington Christine Gregoire by Kristin Houser, Adam J. Berger, Rebecca J. Roe, and William Rutzick; for the American Civil Rights Union et al. by Peter Ferrara; for the American Hospital Association et al. by Sheree R. Kanner, Catherine E. Stetson, Dominic F. Perella, Lisa Gilden, and Frank R. Trinity; for the American Life League by Robert L. Sassone; for Child Advocacy Organizations by Jeffrey 0. Bramlett, Emmet J. Bond-urant, and Barbara B. Woodhouse; for Citizens and Legislators in the Fourteen Health Care Freedom States by Nicholas C. Dranias, Clint D. Bolick, and Linda W. Knight; for the Citizens’ Council for Health Freedom by John Remington Graham; for Constitutional Law and Economics Professors by Wilson R. Huhn; for Economic Scholars by Richard L. Rosen and Michael D. Thorpe; for Former United States Department of Justice Officials by Theodore B. Olson, Amir C. Tayrani, Joshua S. Lipshutz, Terence J. Pell, and Michael E. Rosman; for the Foundation for Moral Law, Inc., by John A. Eidsmoe and Benjamin D. DuPré; for the Health Foundation of Greater Cincinnati by James A. Feldman; for the Institute for Justice by William H. Mellor, Dana Berliner, Steven M. Simpson, and Elizabeth Price Foley; for the Landmark Legal Foundation by Richard P. Hutchison; for the Liberty Legal Foundation by Van R. Irion; for Liberty University, Inc., et al. by Mr. Staver, Ms. Staver, Mr. Crampton, and Mr. McAlister; for the Partnership for America by Charles J. Cooper, David H. Thompson, Howard C. Nielson, Jr., and Brian S. Koukoutchos; for Project Liberty by Allan E. Parker, R. Clayton Trotter, Kathleen Cassidy Goodman, and Steven W. Fitschen; for The Rutherford Institute by Alfred W. Putnam, Jr., Jason P. Gosselin, D. Alicia Hickok, and John W. Whitehead; for the Thomas More Law Center et al. by Robert J. Muise, David Yerushalmi, and Richard Thompson; for Young Invincibles by Paolo Annino; for Barry Friedman et al. by Jeffrey A. Lamken, Robert K. Kry, Martin V. Totaro, and Mr. Friedman, pro se; for Egon Mittelmann by Mr. Mittelmann, pro se; and for David R. Riemer et al. by Dean A. Strang.
Briefs of amici curiae urging reversal in Nos. 11-393 and 11-400 (Sev-erability) were filed for the American Center for Law & Justice et al. by Mr. Sekulow, Mr. Roth, Mr. May, Mr. Henderson, Mr. Weber, Mr. White, and Mr. Zimmerman; for the American Civil Rights Union by Mr. Fer-rara; for America’s Health Insurance Plans et al. by Patricia A. Millett, Orly Degani, James E. Tysse, and Roger G. Wilson; for the Chamber of Commerce of the United States of America by K. Lee Blalack II, Brian D. Boyle, Anton Metlitsky, Robin S. Conrad, Shane B. Kawka, and Kathryn Comerford Todd; for Economists by Mr. Bradbury, Mr. Engel, and Mr. Park; for the Family Research Council et al. by Nelson Lund; and for the National Restaurant Association by Leon R. Sequeira, David M. Weiner, and Jennifer A. Kraft.
Briefs of amici curiae urging affirmance in Nos. 11-393 and 11-400 (Severability) were filed for Missouri Attorney General Chris Foster by Mr. Roster, pro se, and Mr. Morgan, Deputy Solicitor General; for Michigan Legal Services, Inc., by Gary A. Benjamin; and for the Washington and Lee University School of Law Black Lung Clinic by Timothy C. MacDonnell.
Briefs of amici curiae were filed in Nos. 11-393 and 11-400 (Severability) for the State of California et al. by Ms. Harris, Attorney General of California, Travis LeBlanc, Special Assistant Attorney General, Manuel M. Medeiros, State Solicitor General, and Daniel J. Powell, Deputy Attorney General, by Christine O. Gregoire, Governor of Washington, and by the Attorneys General for their respective jurisdictions as follows: Mr. Jepsen of Connecticut, Mr. Biden of Delaware, Mr. Nathan of the District of Columbia, Mr. Louie of Hawaii, Ms. Madigan of Illinois, Mr. Miller of Iowa, Mr. Gansler of Maryland, Mr. King of New Mexico, Mr. Schneiderman of New York, Mr. Kroger of Oregon, and Mr. Sorrell of Vermont; for AARP et al. by Ms. Bobrojf, Mr. Cohen, Ms. Canan, Bruce Vignery, and Mr. Schuster; for the American Academy of Actuaries by Kannon K. Shanmugam and Mary E. Downs; for the American Benefits Council by James R. Napoli, Mark D. Harris, Charles S. Sims, and Kathryn M. Wilber; for the American Hospital Association et al. by Ms. Kan-ner, Ms. Stetson, Mr. Perella, and Mr. Trinity; for the American Medical Student Association et al. by Mr. Millhiser; for the American Public Health Association et al. by Martha Jane Perkins and Corey S. Davis; for the Asian & Pacific Islander American Health Forum et al. by Mark A. Packman, Jonathan M. Cohen, and Priscilla Huang; for the Association of American Physicians and Surgeons et al. by Mr. Felsher and Mr. Schlafly; for the Competitive Enterprise Institute et al. by Thomas M. Christina, Jeffrey P. Dunlaevy, Sam Kazman, and Hans Bader; for Freedom Watch by Larry Klayman; for the Justice and Freedom Fund by Deborah J. Dewart and James L. Hirsen; for Members of the United States Senate by James F. Bennett and Ms. Severino; for the National Indian Health Board et al. by Geoffrey D. Strommer, Carol L. Barbero, Elliott Milhollin, and William B. Norman; for the Texas Public Policy Foundation et al. by Mario Loyola, Richard Epstein, and Ilya Shapiro; for David R. Riemer et al. by Mr. Strang; and for Joella Swan et al. by Thomas E. Johnson and Grant Crandall. Mr. Kreep filed a brief for the Western Center for Journalism as amicus curiae in No. 11-393.
Briefs of amici curiae urging reversal were filed in No. 11-400 (Medicaid) for the American Civil Rights Union et al. by Mr. Ferrara; for Economists by Mr. Bradbury, Mr. Engel, and Mr. Park; for the Independence Institute by Mr. Kopel; for the Texas Public Policy Foundation et al. by Mr. Loyola and Mr. Epstein; and for James F. Blumstein by Mr. Blumstein, pro se.
Briefs of amici curiae urging affirmance were filed in No. 11-400 (Medicaid) for the State of Oregon et al. by Mr. Kroger, Attorney General of Oregon, Anna M. Joyce, Solicitor General, and Keith Dubanevich, by Mr. Sorrell, Attorney General of Vermont, and Bridget C. Asay, Assistant Attorney General, by Ms. Gregoire, Governor of Washington, and Mr. Berger, Special Assistant Attorney General, and by the Attorneys General for their respective States as follows: Ms. Harris of California, Mr. Jepsen of Connecticut, Mr. Biden of Delaware, Mr. Louie of Hawaii, Ms. Madigan of Illinois, Mr. Miller of Iowa, Mr. Gansler of Maryland, Ms. Coakley of Massachusetts, Mr. King of New Mexico, and Mr. Schneider-man of New York; for the American Hospital Association et al. by Ms. Kanner, Ms. Stetson, Mr. Perella, Mr. Trinity, and Ms. Gilden; for Catholic Sisters by David J. Burman; for the Disability Rights Legal Center by Chris M. Amantea; for Faithful Reform in Health Care et al. by Thomas W. Coons, Charles M. English, and Wendy M. Yoviene; for Health Law & Policy Scholars et al. by Mr. Outterson; for the Leadership Conference on Civil and Human Rights et al. by Martha F. Davis and Risa E. Kaufman; for the National Health Law Program et al. by Ms. Perkins; for the National Minority AIDS Council et al. by Deanne E. Maynard and Marc A. Hearron; for the Service Employees International Union et al. by Stephen P. Berzon, Mr. Kronland, Ms. Scott, Mr. Kamiat, Mr. Schneider, and Mr. Szymanski; for State Legislators from the Fifty States et al. by Mr. Kendall and Ms. Wydra; for Senate Majority Leader Harry Reid et al. by Mr. Wright, Mr. Simeone, Mark D. Davis, and Mr. Dellinger; for David R. Riemer et al. by Mr. Strang; and for David Satcher, M. D., et al. by Samuel R. Bagenstos, Ira A. Burnim, and Jennifer Mathis.
Briefs of amici curiae were filed in No. 11-400 (Medicaid) for the Association of American Physicians and Surgeons et al. by Mr. Felsher and Mr. Schlafly; for the Center for Constitutional Jurisprudence et al. by Mr. Eastman, Mr. Caso, Mr. Meese, Mr. Sandefur, and Ilya Shapiro; for Freedom Watch by Mr. Klayman; for Indiana State Legislators et al. by Asheesh Agarwal and Mr. Christina; and for Michigan Legal Services, Inc., by Mr. Benjamin.
Chief Justice Roberts
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III-C, an opinion with respect to Part IV, in which Justice Breyer and Justice Kagan join, and an opinion with respect to Parts III-A, III-B, and III-D.
Today we resolve constitutional challenges to two provisions of the Patient Protection and Affordable Care Act of 2010: the individual mandate, which requires individuals to purchase a health insurance policy providing a minimum level of coverage; and the Medicaid expansion, which gives funds to the States on the condition that they provide specified health care to all citizens whose income falls below a certain threshold. We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.
In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder. Nearly two centuries ago, Chief Justice Marshall observed that “the question respecting the extent of the powers actually granted” to the Federal Government “is perpetually arising, and will probably continue to arise, as long as our system shall exist.” McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). In this case we must again determine whether the Constitution grants Congress powers it now asserts, but which many States and individuals believe it does not possess. Resolving this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries.
The Federal Government “is acknowledged by all to be one of enumerated powers.” Ibid. That is, rather than granting general authority to perform all the conceivable functions of government, the Constitution lists, or enumerates, the Federal Government’s powers. Congress may, for example, “coin Money,” “establish Post Offices,” and “raise and support Armies.” Art. I, § 8, cls. 5, 7, 12. The enumeration of powers is also a limitation of powers, because “[t]he enumeration presupposes something not enumerated.” Gibbons v. Ogden, 9 Wheat. 1, 195 (1824). The Constitution’s express conferral of some powers makes clear that it does not grant others. And the Federal Government “can exercise only the powers granted to it.” McCulloch, supra, at 405.
Today, the restrictions on government power foremost in many Americans’ minds are likely to be affirmative prohibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.
Indeed, the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government. As Alexander Hamilton put it, “the Constitution is itself, in every rational sense, and to every useful purpose, A bill op rights.” The Federalist No. 84, p. 515 (C. Rossiter ed. 1961). And when the Bill of Rights was ratified, it made express what the enumeration of powers necessarily implied: “The powers not delegated to the United States by the Constitution... are reserved to the States respectively, or to the people.” U. S. Const., Arndt. 10. The Federal Government has expanded dramatically over the past two centuries, but it still must show that a constitutional grant of power authorizes each of its actions. See, e. g., United States v. Comstock, 560 U. S. 126 (2010).
The same does not apply to the States, because the Constitution is not the source of their power. The Constitution may restrict state governments—as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act. The States thus can and do perform many of the vital functions of modern government—punishing street crime, running public schools, and zoning property for development, to name but a few—even though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the “police power.” See, e. g., United States v. Morrison, 529 U. S. 598, 618-619 (2000).
“State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U. S. 144, 181 (1992) (internal quotation marks omitted). Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 298 (J. Madison). The independent power of the States also serves as a check on the power of the Federal Government: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 564 U. S. 211, 222 (2011).
This case concerns two powers that the Constitution does grant the Federal Government, but which must be read carefully to avoid creating a general federal authority akin to the police power. The Constitution authorizes Congress to “regulate
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_geniss
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Joseph J. VEILLEUX, Jr., Harley M. Dixon, Dennis L. Strazdins, James V. Hoteling, M. Richard White II, David J. St. Maurice, Robert Ketchmere, Margaret A. Correnti, Rutha Williams, Jane E. Alfieri, Thomas H. Bloodgood, Sandra L. Sizer, Gary L. Cannioto, James Rountree and Joseph M. Farzetta, individually, and on behalf of all others similarly situated, Plaintiffs-Appellants, v. ATOCHEM NORTH AMERICA, INC., f.k.a. Pennwalt Corporation, and Edwin E. Tuttle and Anthony Fortino, as fiduciaries of the Pennwalt Pharmaceutical Division Separation Allowance Plan, Defendants-Appellees.
No. 1162, Docket 90-7979.
United States Court of Appeals, Second Circuit.
Argued March 14, 1991.
Decided March 27, 1991.
Warren B. Rosenbaum, Rochester, N.Y. (Shapiro, Rosenbaum & Liebschutz, of counsel) for plaintiffs-appellants.
Eugene D. Ulterino, Rochester, N.Y. (David P. Ford, Nixon, Hargrave, Devans & Doyle, of counsel) for defendants-appel-lees.
Before PIERCE, NEWMAN and WALKER, Circuit Judges.
PER CURIAM:
Joseph J. Veilleux, Jr. and other named plaintiffs, suing on behalf of a class of just over seven hundred former employees of Pennwalt Corporation, appeal from a October 9, 1990 judgment of the District Court for the Western District of New York (David G. Larimer, Judge). On cross-motions for summary judgment the district court dismissed their suit seeking separation benefits allegedly denied in violation of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.
The Veilleux class comprises former employees of the Pharmaceutical Division of Pennwalt Corporation (“the Division”), now known as Atochem North America Inc. On Friday, October 14,1988, Pennwalt sold the Division to Fisons Corporation. Plaintiffs were offered and accepted positions with Fisons beginning the following Monday, October 17, 1988, performing the same duties, at the same rate of pay, and with similar benefits as their positions with the Division. One of those benefits was a severance pay provision that gave credit to time served as a Pennwalt employee in calculating severance pay from Fisons. Plaintiffs were not given any separation benefits at the time they ceased working for the Division and began working for Fisons.
Prior to January 1, 1988, Pennwalt maintained a Separation Policy for its employees known as Separation Policy 140 (“Policy 140”). Policy 140 was not distributed to every employee, but to fifty-eight Division supervisors, who did not pass on the information unless requested by an employee. The policy laid out a “general rule” that “separation allowance .. may be granted” on a scale of two weeks of pay for up to five years of employment and one week per year of employment for those employed five years and over, with a cap of twenty six weeks of severance pay (emphasis added). Under the heading “Leaves of Absence,” and after the subsection labelled “Maternity,” however, the policy contained the following “Note”:
Persons who leave employment with Pennwalt to continue their employment in a unit sold by Pennwalt are not included in the above definitions of “separations” and are not entitled to the provisions of this policy. Determination of any benefits to which they may be entitled shall be determined by agreement between Pennwalt and acquiring company’s representatives as a part of negotiations for the disposition of the unit.
Effective January 1, 1988, Pennwalt replaced Policy 140 with Policy 141, which did away with the schedule of separation benefits per years of service set out in Policy 140, and placed the decision of whether or not to pay separation allowance even more clearly “at the discretion of Company management.” Policy 141 also deleted the “Note” from the “Leaves of Absence” section, and added a more prominent provision stating that employees who are offered employment by an acquiring company are not entitled to separation benefits, unless they are terminated from that company within a year. Policy 141 was given to the Division’s personnel department but was never distributed or publicized to employees, not even to the fifty-eight supervisors who had copies of the preceding policy.
The Veilleux class argues that Pennwalt violated ERISA disclosure requirements by failing to properly distribute Policy 140 and 141 and by misplacing the “Note” regarding the separation status of employees who accept employment with a purchasing company under the “Leaves of Absence” section of Policy 140.
In 29 U.S.C. § 1024(b)(1) ERISA requires an employer to furnish “each participant with a copy of the summary plan description.” Pennwalt’s distribution of its Policy 140 — the equivalent of a summary plan description — to supervisors only, and its failure to distribute Policy 141 to any employee plainly violated § 1024(b)(l)’s requirement that every employee receive a description of the plan. 29 U.S.C. § 1022(a)(1) requires that a plan description “shall be sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan.” The placement of the “Note” regarding the separation status of employees who continue employment in a unit sold by Pennwalt under the heading “Leaves of Absence,” and within that section, under the “Maternity” subsection was also an ERISA violation. An employee in a position to accept employment with a purchasing company who wished to learn about the consequences of this action upon her Pennwalt separation benefits would probably not look for such information under this section, unless by coincidence she was or expected to be pregnant. Therefore she would not be “reasonably apprised” of her rights. The misplacement of the note thus violated § 1022(a)(1).
Where violations of ERISA disclosure provisions work a “substantive harm” on plaintiffs who are denied benefits under the improperly disclosed plan, courts may find that these violations “sufficiently taint [the employer’s] denial of severance pay so as to warrant a finding that [the denial] was arbitrary and capricious” and grant the benefits. See Gilbert v. Burlington Industries, Inc., 765 F.2d 320, 328-29 (2d Cir.1985), aff'd, 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 558 (1986); Blau v. Del Monte Corp., 748 F.2d 1348, 1354 (9th Cir. 1984), cert. denied, 474 U.S. 865, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985). However, this is not such a case.
Plaintiffs are, and were since the sale, employed by Fisons and are covered there by a separation policy which takes into account time served with Pennwalt in calculating severance pay. More significantly, they have failed to offer any evidence to support their assertion that had they been aware of Pennwalt’s severance policy they would have chosen to forgo employment with Fisons and accept the severance pay. In addition, plaintiffs had no assurance that had they decided to turn down the Fisons positions they would have received severance pay upon the termination of their jobs with Pennwalt, because under Policy 140 and Policy 141 payment of severance pay is discretionary with the plan administrator and there is no showing that this discretion would have been exercised in favor of the plaintiffs. Therefore they have demonstrated no cognizable prejudice from Pennwalt’s failure to fully comply with ERISA’s disclosure requirements, and have not shown, even under the lenient standard of Gilbert and Blau, that the denial of benefits was arbitrary.
The Veilleux class presents no other viable argument as to why they should be entitled to severance pay benefits. As Judge Larimer noted, employees have no vested right in receiving separation benefits, as an employer has the right to amend or terminate a severance pay plan at any time. See Reichelt v. Emhart Corp., 921 F.2d 425, 430 (2d Cir.1990). Pennwalt chose to deny separation benefits to employees who accepted jobs with a purchasing company and demonstrated this choice in its written policy plan. Aside from disclosure inadequacies, which we have determined to be non-prejudicial in this case, there is no reason this choice should not be honored.
Affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Plaintiff-Appellee, v. Michael E. QUINTO, Defendant-Appellant.
No. 914, Docket 78-1027.
United States Court of Appeals, Second Circuit.
Argued May 9, 1978.
Decided Aug. 7, 1978.
Frederic Block, Smithtown, N. Y., Hull, Block & Grundfast, Smithtown, N. Y., for defendant-appellant.
Mary McGowan Davis, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., Eastern District of New York, Brooklyn, N. Y., of counsel), for plaintiff-appellee.
Before WATERMAN, INGRAHAM and MANSFIELD, Circuit Judges.
Of the United States Court of Appeals for the Fifth Circuit, sitting by designation.
WATERMAN, Circuit Judge:
While it is superfluous to say that the intent of a tax evader is to try “to screw the government out of some cash if [he can],” what makes this contested tax evasion case remarkable is that, according to the government, Quinto, the alleged tax evader here, was gracious enough to acknowledge to two Internal Revenue Service agents when interviewed by them that that is precisely what he was hoping to accomplish by failing to report approximately $15,000 of income over a two-year period. Not surprisingly, though, Quinto’s recollection of his interview with the IRS agents, as developed during his testimony in his own defense at his trial before Judge Pratt and a jury in the United States District Court for the Eastern District of New York on two charges of tax evasion (26 U.S.C. § 7201) and two charges of willfully subscribing false income tax returns (26 U.S.C. § 7206(1)), is somewhat different.
The legal issue which we are required to resolve on this appeal from Quinto’s conviction on all counts of the four-count indictment brought against him was precipitated by the government’s unwillingness to rely solely upon the revenue agents’ in-court testimony regarding their interview. More particularly, to rehabilitate one agent’s damaged credibility and further to prove that Quinto had indeed made certain extremely incriminatory remarks to his inquisitors, the government sought to introduce, and, after initial refusals by the judge, was permitted to introduce an elaborate IRS memorandum recounting in extraordinary detail what had purportedly transpired during Quinto’s interrogation by the IRS agents and two federal prosecutors. Inasmuch as we agree with Quinto that the district court erred by admitting the memorandum as a prior consistent statement under Fed.R.Evid. 801(d)(1)(B) and that the court’s erroneous admission of the document severely prejudiced Quinto’s right to a fair trial, we reverse the judgment order of conviction and remand for a new trial on all counts of the indictment.
The four-count indictment upon which Quinto was prosecuted charged him with two counts of income tax evasion, in violation of 26 U.S.C. § 7201, for the calendar years 1974 and 1975, and with two counts of willfully subscribing false income tax returns, in violation of 26 U.S.C. § 7206(1), for those same two years. Following a six-day jury trial in the United States District Court for the Eastern District of New York, Quinto was convicted on all four counts. Upon his four convictions, Quinto was sentenced to a two-year term of imprisonment on each count, the sentences to be served concurrently with two months of each two-year term to be served in a “jail-type” institution., Quinto was also fined $2,500 on each of the four convictions, the total of the fines so imposed being $10;000. Execution of sentence was stayed and Quin-to has been free on bail pending disposition of this appeal.
Michael Quinto is a full-time employee of the Suffolk County (New York) Land Management Bureau, serving in the capacity of Senior Right of Way Agent. Since 1965, however, Quinto had also performed services on a part-time basis for the architectural and engineering firm of Wiedersum Associates. Because of Quinto’s numerous business and personal contacts with school board members throughout Suffolk County, Wiedersum had retained him as a “public relations man or sales representative” who might be able to arrange interviews for the firm with Suffolk County school boards interested in obtaining architectural or engineering services of the type provided by Wiedersum. Quinto’s arrangement with Wiedersum provided that if, as a result of the interviews Quinto arranged, the firm were selected to perform professional services for a school district, Quinto’s compensation would amount to 41/2-5% of Wiedersum’s gross architectural fee. It was understood, however, that, as a general matter, Quinto would not be reimbursed by Wiedersum for any of the business expenses he might incur while performing services for Wiedersum. Beginning in 1965 Quinto received $50 per week from Wiedersum as an advance against the commissions it was expected he would earn and in 1966 the size of the weekly advance was increased to $100 per week. Quinto continued to receive these weekly payments until 1975. Moreover, the firm would also occasionally make lump-sum payments to Quinto to cover commissions he had earned.
As a result of Quinto’s successful public relations efforts, Wiedersum paid Quinto over $75,000 and on his federal income tax returns for the years 1965-1973 Quinto carefully reported as gross income all these amounts so received from Wiedersum. Quinto’s troubles with the Internal Revenue Service, however, developed out of his failure to report on his 1974 and 1975 federal income tax returns any income he received from Wiedersum during those years. It is conceded that Wiedersum paid Quinto $10,-400 (composed of $5,400 in weekly checks and a $5,000 lump-sum payment) in 1974 and $5,300 (all in weekly payments) in 1975. Quinto did not report any of this income, and he did not claim any business expenses which he might have incurred through his employment by Wiedersum. According to the testimony of an IRS official, as a result of Quinto’s failure to report the payments received from Wiedersum in 1974 and 1975 Quinto underpaid his federal income tax by approximately $3,300 in 1974 and by $1,950 in 1975.
Inasmuch as the defense acknowledged that Quinto had failed to report the aggregate $15,700 received from Wiedersum during 1974 and 1975, the government’s proof at trial was directed at establishing that at the time he had failed to report' the income Quinto had had the willful intent that must exist for a defendant to be convicted of tax evasion (§ 7201) and of willfully subscribing false income tax returns (§ 7206(1)). To establish the willfulness of Quinto’s failure to report income, the government relied upon the testimony of James Wallwork, a Special Agent in the Intelligence Division of the Internal Revenue Service. The crucial portion of the agent’s testimony concerned an interview with Quinto conducted by Wallwork, Peter Fuhrman, another IRS Special Agent, and two Assistant United States Attorneys. Several days prior to August 20, 1976, the date on which the interview was conducted, a federal prosecutor had called Quinto and asked him to appear for the interview at the prosecutor’s office in the United States Courthouse in Brooklyn. At the time the invitation was extended, the agents and the prosecutor were fully aware that Quinto had not reported the $15,700 he had received from Wiedersum during 1974 and 1975. Unaccompanied by counsel, Quinto appeared at the scheduled time and was ushered into the prosecutor’s office. Wallwork testified at trial that, prior to the start of the interrogation, one of the two prosecutors who was present advised Quinto that he was a target of a grand jury investigation and that he was also a subject of a criminal investigation by the Internal Revenue Service. Miranda warnings were also given, and these were repeated several times during the course of the interview. After the initial warnings had been given, Quinto claimed to understand his rights and expressed his desire to proceed with the discussion. Quinto was eventually asked why he had not reported the money he had received from Wiedersum during 1974 and 1975, and according to Wallwork, Quinto, after some abortive attempts to extricate himself from his obvious predicament, blurted out: “Okay, I was trying to screw the government out of some cash if I could.”
Defense counsel conducted a vigorous cross-examination of Wallwork which was designed to show that the meeting of August 20 had been more of an inquisition than an interview and that subsequent to that interview the IRS had failed to conduct an adequate enough investigation for the purpose of corroborating Quinto’s story that he had had various unreported business expenses, attributable primarily to Quinto’s entertainment of members of local school boards, which would counterbalance any unreported income. On Agent Wallwork’s redirect examination, the government attempted to prove that the IRS had carefully investigated all business expenses which Quinto claimed he had not reported and had found that these claimed expenses simply did not exist. In particular, Wall work testified that he personally had interviewed seven local school board members whom Quinto claimed he had entertained during 1974 and 1975 and that all seven individuals, including a Mr. O’Connell and a Mr. Fingar, denied having been entertained by Quinto.
More importantly, though, the prosecution on redirect examination elicited from Wall work that the agents had prepared a memorandum following the August 20 “interview” with Quinto. The document, consisting of eight single-spaced, typed pages, purported to describe exactly what had happened at Quinto’s session with the agents. It disclosed, among other things, that Quin-to had been read the rights to which Wall-work had previously referred in his direct testimony and, in what was portrayed as a verbatim quotation of Quinto’s remarks, that Quinto had confessed that his purpose in failing to' report the income was “to screw the government out of some cash if [he] could.” Arguing that there had been “a general attack on the agent’s credibility,” the government attempted to introduce the memorandum as a prior consistent statement usable not only to corroborate Wallwork’s in-eourt direct testimony but also usable under Fed.R.Evid. 801(d)(1)(B) as “substantive evidence” to prove that Quinto had made the fatal admission the IRS agents claim he made. The defense objected to the admission of the document, and, although the judge sustained the objection, he expressly left open the possibility that he might permit the document to be admitted later in the trial “if there [were] a challenge to its credibility, even the form of a contradiction.”
Quinto testified in his own defense and his testimony covered two distinct areas. First of all, his recollection of what had transpired at his interview conducted by the IRS agents and the federal prosecutors differed materially from the version of that incident conveyed to the jury through Agent Wallwork’s testimony and, importantly, the version which would eventually be conveyed to the jury through the later-admitted IRS memorandum of that interview as well. Quinto, claiming that he had been lured to the interview on the pretext that the discussions there would involve certain land condemnation procedures, stated that the interview had been conducted in inquisitorial fashion, his inquisitors “badgering” and “goading” him and calling him a “liar” at several points during the interview. Quinto stated that he had not been informed at the start of the interview that he was a target, and that he had no recollection of having been informed that he had the right to leave the room at any time, or that he could refuse to answer questions. As to the supposed admission that he was trying “to screw the government out of some cash,” Quinto testified that Agent Wall work had distorted what Quinto had actually said:
Mr. Gillen: That is correct.
The Court: It does not rebut that particular charge, assuming that the charge has any place in the case.
When they were goading me and goading me, I just said, “Do you think for one moment I would try to screw the Government out of a few dollars?” That’s what I said, in just that tone, with a question mark on the end of it. (Tr. at 693.)
During Quinto’s direct examination, defense counsel also attempted to establish that Quinto’s failure to report income and to pay the taxes due on that income was attributable to his good faith belief that his undeclared business expenses for 1974 and 1975 exceeded his unreported income for those two years. During his cross-examination, Quinto denied that he had admitted at the interview that his purpose in not reporting the income had been to “screw the government out of some cash.” Undaunted by this categorical denial, the prosecutor kept pressing the witness to concede that he had made the damaging statement and, to get Quinto to retract his denial, the prosecutor attempted to “refresh the witness’s recollection” by showing him the IRS memorandum and directing his attention to the point in the memorandum where it was stated that Quinto had made the admission of guilt. At this point the prosecutor again offered the IRS memorandum into evidence, and again Judge Pratt refused to admit the document.
The remainder of the defense case was presented through character witnesses and witnesses who testified in support of Quin-to’s story that certain business expenses he supposedly incurred during 1974 and 1975 were incurred in connection with his promotional efforts on behalf of Wiedersum. Moreover, two of the witnesses, O’Connell and Fingar, who were members of local school boards, directly contradicted portions of Wallwork’s prior testimony. As already mentioned, Wallwork had testified that, during his investigation to determine whether Quinto had incurred the business expenses Quinto said he had incurred, Wall-work had visited with these particular school board.members. According to Wall-work’s direct testimony during the government’s case-in-chief, these individuals had responded that they had not been entertained by Quinto during 1974 or 1975. During their direct testimony on Quinto’s behalf at trial, however, these two school board members denied having told the IRS agents that Quinto had not entertained them during 1974 and 1975. In addition, another witness contradicted Wallwork’s testimony. Wallwork had previously testified that the IRS agents had learned, contrary to what they had been told by Quinto, that Quinto’s wife had purchased certain gifts from a local pharmacy at the request of her employer rather than on behalf of her husband. Testifying for the defense, however, the pharmacist from whose store Mrs. Quinto had purchased these gifts disputed Wallwork’s testimony that Mrs. Quin-to had purchased them at the request of her employer rather than on behalf of her husband.
After the defense had rested, the judge, of his own accord, reopened the question of the admissibility of the IRS memorandum:
The Court: A little earlier this morning, Mr. Marcus, you offered in evidence the statement of the revenue agent.
Mr. Gillen: I think that was yesterday.
The Court: It had been previously offered and I ruled upon it at that time. I believe again this morning you offered it, almost in passing, without any particular discussion of the point.
Mr. Marcus: Yes, your Honor.
The Court: I sustained the objection at the time and I have been thinking about it further, and have wondered whether you were now taking the position that the implied attack upon Mr. Wallwork’s credibility as to recent fabrication or improper motive or influence or something, had been sufficiently established to warrant its admission.
Mr. Marcus: That in fact, is the basis for the offer at that time. It would seem to me that at this point, we have had almost a day of Mr. Quinto, in essence, saying that Special Agent Wallwork lied in connection with saying “He was not given his rights,” saying he was or was not told he was a target, etc.
The Court: I know what he said. Just when you made the offer, you didn’t say anything that rang the bell that you were reasserting the argument, which you had previously made, and which I expressly left open in the event the contradictions should occur.
You did intend to reassert that—
Mr. Marcus: That is correct, your Hon- or.
The Court: I will reflect on the matter over lunch. I will give you my ruling after lunch.
Tr. at 852-53 (emphasis supplied).
After lunch, the judge did exactly that, ruling that “I have decided that I will admit [the memorandum] into evidence under 801(d)(l)(2) [sic], I believe it is.” Id. at 870. Thereafter, the prosecutor distributed the memorandum, now an exhibit in the case, to the jurors and it was taken by them into the jury room when they retired to deliberate Quinto’s fate.
Quinto’s principal argument on appeal is that the district court committed reversible error by admitting the IRS memorandum into evidence as a prior consistent statement under Fed.R.Evid. 801(d)(1)(B). We agree, and we hold that the memorandum should have been excluded regardless of whether it was offered for the truth of the matters asserted therein or merely for the more limited purpose of rehabilitating the in-court testimony of Agent Wallwork of the Internal Revenue Service.
For nearly 200 years last past, the courts have enforced, except in certain very limited circumstances, a general prohibition against the use of prior consistent statements. While it is true that the use of such statements to prove the truth of the matters asserted has always been clearly barred by the hearsay rule, see, e. g., 4 Wigmore, Evidence § 1132, at 294 (Chadbourn rev. 1972); 6 Wigmore, Evidence § 1792, at 327 (Chadbourn rev. 1976), the courts have also generally prohibited the use of such evidence even when the proponent of the prior consistent statement was simply offering it for the more limited purpose of bolstering the witness’s damaged credibility. United States v. Check, 582 F.2d 668, 677 n. 27 (2d Cir. 1978); Mitchell v. American Export Isbrandtsen Lines, Inc., 430 F.2d 1023, 1029 (2d Cir. 1970); United States v. Lev, 276 F.2d 605, 608 (2d Cir.), cert. denied, 363 U.S. 812, 80 S.Ct. 1248, 4 L.Ed.2d 1153 (1960); 6 Wigmore, Evidence § 1792, at 327 (Chadbourn rev. 1976) (“Consistent statements to corroborate a witness are admitted in cer-
tain cases only.”) (emphasis in original). The rationale for excluding most, but not all, prior consistent statements being offered to establish the witness’s credibility is one of relevancy. “The witness is not helped by [the prior consistent statement;] even if it is an improbable or untrustworthy story, it is not made more probable or more trustworthy by any number of repetitions of it.” 4 Wigmore, Evidence § 1124, at 255 (Chadbourn rev. 1972); see 4 Wigmore, Evidence § 1122, at 254 (Chadbourn rev. 1972). There have been situations, however, in which courts traditionally have felt that it is indeed relevant to the issue of whether the witness’s in-court testimony should be believed that on prior occasions the witness has uttered statements which are consistent with his in-court testimony. “Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive.” Note to Rule 801, Notes of the Advisory Committee on the Proposed Rules of Evidence [hereinafter “Advisory Committee Notes”], 56 F.R.D. 183, 296 (1972); accord, United States v. Check, supra, 582 F.2d at 680-681; see, e. g., 4 Wigmore, Evidence § 1128, at 268 (Chadbourn rev. 1972); 4 Weinstein’s Evidence ¶ 801(d)(l)(B)[01], But the prior consistent statements have been so admissible only when the statements were made prior to the time the supposed motive to falsify arose. United States v. Check, supra, at 681; United States v. Fayette, 388 F.2d 728, 733 (2d Cir. 1968); United States v. Grunewald, 233 F.2d 556, 566 (2d Cir. 1956), rev’d on other grounds, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); People v. Davis, 44 N.Y.2d 269, 405 N.Y.S.2d 428, 376 N.E.2d 901 (1978); 4 Weinstein’s Evidence ¶ 801(d)(l)(B)[01]; J. McLaughlin, “New York Trial Practice,” 179 N.Y.L.J. No. 111, June 9, 1978, at pg. 1, col. 1, pg. 2, col. 4-5. Only then was the prior consistent statement “relevant” on the issue of credibility; that is, it tended to make the trustworthiness of the witness’s in-court testimony more probable, after that testimony had been assailed, inasmuch as the consistency of the prior statement with the witness’s testimony at trial made it “appear that the statement in the form now uttered was independent of the [alleged] discrediting influence.” 4 Wigmore, Evidence § 1128, at 268 (Chadbourn rev. 1972).
To the extent that a prior consistent statement is used for rehabilitative purposes, the Federal Rules of Evidence have apparently not altered prior law. Fed.R. Evid. 402 laconically states that “[e]vidence which is not relevant is not admissible,” and “relevant” evidence is defined in Fed.R. Evid. 401 as being “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Needless to say, irrelevant evidence is evidence which does not possess such a tendency. While credibility is always an issue of consequence and while “testimony which aids in the jury’s determination of a [witness’s] credibility and veracity [is always relevant],” Lewis v. Baker, 526 F.2d 470, 475 (2d Cir. 1975), it is well-recognized, as we have already explained, that only some well-defined classes of prior consistent statements can really so assist the jury. Therefore, it has been only those particular categories of prior consistent statements which have been able to withstand the objection that the prior consistent statement is irrelevant to the issue of the witness’s credibility.
In one very significant respect, though, the Federal Rules of Evidence, through the adoption of Fed.R.Evid. 801(d)(1)(B), have altered the preexisting evidentiary law on the use of prior consistent statements. Fed.R.Evid. 801(d)(1)(B) provides, in pertinent part:
(d) Statements which are not hearsay.
A statement is not hearsay if-—
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive
As can be seen, Fed.R.Evid. 801(d)(1)(B) does not, in and of itself, purport to allow the introduction of any prior consistent statements, but it does insure that any prior consistent statement which satisfies its requirements will not be regarded as “hearsay” and thus inadmissible under Fed.R. Evid. 802. In other words, prior consistent statements which satisfy the conditions set forth in Fed.R.Evid. 801(d)(1)(B) can now be used, in contrast to the restricted permissible uses under preexisting law, as “substantive evidence,” Note to Rule 801, Advisory Committee Notes, supra, 56 F.R.D. at 296, to prove the truth of the matters asserted therein. E. g., United States v. Check, 582 F.2d at 680-681. It is of greatest importance, however, that, inasmuch as the drafters of the proposed Federal Rules of Evidence intended that prior consistent statements could be used as substantive evidence only in those “situations in which rehabilitation through consistency would formerly have been allowed,” 4 Weinstein’s Evidence ¶ 801(d)(l)(B)[01], at 801-100; accord, United States v. Check, supra, at 680-681. Note to Rule 801, Advisory Committee Notes, supra, 56 F.R.D. at 296, the standards for determining whether prior consistent statements can now be admitted as substantive evidence are precisely the same as the traditional standards and, as explained above, continue to be the standards used under the new rules of evidence for determining which varieties of prior consistent statements can be admitted for the more limited purpose of rehabilitation.
It is clear, therefore, that to avoid having the prior consistent statement found irrelevant under Fed.R.Evid. 402 or incapable of satisfying the requirements of Fed.R. Evid. 801(d)(1)(B), the proponent must demonstrate three things. First, he must show that the prior consistent statement is “consistent with [the witness’s in-court] testimony.” Fed.R.Evid. 801(d)(1)(B). Second, the party offering the prior consistent statement must establish that the statement is being “offered to rebut an express or implied charge against [the witness] of recent fabrication or improper influence or motive.” Id. Finally, it is necessary that, as was the situation under the law of evidence prior to the adoption of the Federal Rules of Evidence, see, e. g., United States v. Check, supra, at 680-681; United States v. Fayette, supra, 388 F.2d at 733; United States v. Grunewald, supra, 233 F.2d at 566, the proponent must demonstrate that the prior consistent statement was made prior to the time that the supposed motive to falsify arose, e. g., United States v. Check, supra, 582 F.2d at 681; United States v. McGrath, 558 F.2d 1102, 1107 (2d Cir. 1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1239, 55 L.Ed.2d 765 (1978); United States v. Lombardi, 550 F.2d 827, 828-29 (2d Cir. 1977) (per curiam); 4 Weinstein’s Evidence ¶ 801(d)(l)(B)[01].
Here, during oral argument before us, in response to pointed questioning from the bench the government has failed to satisfy this third requirement. The various improper motives the defense vigorously asserted the IRS agent might have had for lying on the witness stand — motives reducible essentially to a claim that, regardless of Quinto’s actual guilt or innocence, throughout the entire investigation the government agents were ruthlessly seeking a conviction, presumably to enhance their own professional advancement and aggrandizement— would have been as operative at the time the IRS agents compiled the memorandum summarizing their interview with Quinto as those motives were at the time the IRS agents testified at trial. Indeed, Quinto’s testimony attempted to show that the “interview” had been more in the nature of a trap and an inquisition and that, even at the time of the interview, the IRS agents and the prosecutors were, in common parlance,- out “to get” him. Thus, the deeply rooted prejudice which Quinto claims was motivating the agents’ actions existed both at the time the memorandum was compiled and at the time of Quinto’s trial.
Moreover, while the admissibility of the memorandum was being debated at trial, at no time during his extended remarks on the subject did the prosecutor apparently point out to Judge Pratt exactly what improper motives might have existed at trial that did not also exist at the time of the compilation of the memorandum. Indeed, restricting his argument advocating the document’s admission to the ground that there had been “a general attack on the agent’s credibility,” indeed, a “broad based attack on motive, intent, integrity of not only this agent, but the Internal Revenue Service in the preparation and prosecution of this case,” the prosecutor seemingly thought the memorandum admissible regardless of the time when the alleged motive to falsify might have arisen. Judge Pratt also mistakenly assumed that, regardless of the time when any motive to falsify might have arisen, the memorandum was admissible as soon as there had been a clear “challenge to [the agent’s] credibility, even [in] the form of a contradiction,” Tr. at 347, or “contradictory testimony by someone else,” id. Although the district judge refused to admit the document during the redirect examination of Agent Wall work, he did permit it to be introduced after Wallwork’s testimony had been “contradicted” by Quinto and several other witnesses. The judge’s apparent reasons for allowing the document to be admitted are not, and historically have not been, a sufficient basis for admitting prior consistent statements for rehabilitative purposes.
A former consistent statement helps in no respect to remove such discredit as may arise from a contradiction by other witnesses., When B is produced to swear to the contrary of what A has asserted on the stand, it cannot help us, in deciding between them, to know that A has asserted the same thing many times previously. If that were an argument, then the witness who had repeated his story to the greatest number of people would be the most credible.
4 Wigmore, Evidence § 1127, at 267 (Chadbourn rev. 1972); accord, e. g., United States v. Adams, 385 F.2d 548, 550 n. 3 (2d Cir. 1967) (Friendly, J.) (“prior consistent statements... would have been equally incompetent after impeachment which here was solely by contradiction”); Mitchell v. American Export Isbrandtsen Lines, Inc., supra, 430 F.2d at 1029 (prior consistent statement to bolster witness’s testimony inadmissible “even after the witness whose testimony is sought to be bolstered has been contradicted”); United States v. Leggett, 312 F.2d 566, 572-73 (4th Cir. 1962), cert. denied, 377 U.S. 955, 84 S.Ct. 1633, 12 L.Ed.2d 499 (1964); see People v. Williams, 403 N.Y.S.2d 548 (2d Dep’t 1978).
We therefore conclude that the memorandum was irrelevant for the rehabilitative purpose of bolstering Agent Wall-work’s challenged credibility and, to the extent that it was used or could be used as substantive evidence to prove the truth of the matters asserted in the memorandum, it did not satisfy the requirements of Fed.R. Evid. 801(d)(1)(B) and it therefore was not excluded from the definition of hearsay contained in Fed.R.Evid. 801(c). As a consequence, it was inadmissible under Fed.R. Evid. 802 unless it could satisfy the standards of one of the hearsay exceptions delineated in Rules 803 and 804 of the Federal Rules of Evidence. This it could not do, for “in criminal cases reports of public agencies setting forth matters observed by police officers and other law enforcement personnel.. cannot satisfy the standards of any hearsay exception if those reports are sought to be introduced against the accused.” United States v. Oates, 560 F.2d 45, 84 (2d Cir. 1977); United States v. Ruffin, 575 F.2d 346, 356 (2d Cir. 1978). We therefore hold that the district court erred in admitting the IRS memorandum against Quinto.
Having concluded that the memorandum was improperly admitted into evidence, we must now determine whether the error necessitates reversal of the convictions. We do not hesitate to decide that it does. The test for determining whether error not of constitutional dimension is prejudicial error, is, of course, a familiar one. Regardless of whether there were other independently sufficient evidence to convict the defendant, we can find the error harmless only if “our conviction is sure that the error did not influence the jury or had but very slight effect,” United States v. Ruffin, supra, 575 F.2d at 359, quoting Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); accord, United States v. Check, supra, 582 F.2d at 684-685; United States v. Frank, 494 F.2d 145, 161 n. 19 (2d Cir.), cert. denied, 419 U.S. 828, 95 S.Ct. 48, 42 L.Ed.2d 52 (1974). Here it is a virtual certainty that the eight-page single-spaced IRS report substantially influenced the jury to convict Quinto. The more official and authoritative a writing appears to be, the less likely it is that even cautious or cynical individuals will be able to resist the temptation to regard the accuracy of the contents of the document as being beyond reproach. The memorandum which the IRS agents prepared following their interview with Quinto is, to say the least, impressive in appearance. Indeed, the specificity with which the document relates the entire course of the interview, the questions propounded by the interrogators and Quinto’s responses to those inquiries, leads us to believe that it would indeed be the unusual juror who would be unimpressed and uninfluenced by the memorandum or who would be at all dubious that Quinto had been treated solicitously or that he actually had confessed that he was “trying to screw the government out of some cash if [he] could.” In fact, we have little doubt that once the jury had retired to the privacy of their deliberations, the document which we have held to have been improperly admitted probably became the single most important piece of evidence, testimonial or documentary, against Quinto, for “[t]he jury
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_adminrev
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O
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
BARNETT et al. v. UNITED STATES.
No. 7962.
Circuit Court of Appeals, Ninth Circuit.
March 23, 1936.
Paul R. Hutchinson, of Los Angeles, Cal., for appellant.
Peirson M. Hall, U. S. Atty., and Howell Purdue, Asst. U. S. Atty., both of Los Angeles, Cal.
Marion De Vries, of Washington, D. C. (Jesse P. Crawford and H. Kennedy McCook, both of Washington, D. C., of counsel), amici curiae.
Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges.
WILBUR, Circuit Judge.
This is an appeal from a decree in equity in an action brought by the United States to recover from Anna Laura Barnett and the other defendants, who have not appealed, such portion of the sum of $550,000 as was given to her by the Secretary of the Interior from funds of an Indian derived from royalties from an oil lease on real estate allotted to the Indian in the state of Oklahoma.
The appellants filed eleven assignments of error. The first was that the court erred in denying the motion of defendant Anna Laura Barnett to dismiss the amended bill of complaint. The third was that the court erred in overruling the objection of the defendants Anna Laura Barnett and Maxine Sturges by their counsel to the introduction of any evidence in said case. The sixth, that the trial court had no jurisdiction over this action or its subject-matter and erred in assuming and maintaining the same.
The appellants have prepared an agreed statement on appeal purporting to be in accordance with Equity Rule 77 (28 U.S.C.A. following section 723), which permits a statement of the cause “showing how the questions arose and were decided in the district court and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such' questions by the appellate court.”
This agreed statement is in the form of a stipulation approved by the trial judge. Among other things it states:
“It is hereby stipulated that no statement of evidence or bill of exceptions need be filed herein, and that the appeal of said case be heard on the judgment roll and upon this Agreed Statement on Appeal.
“ * * * It is hereby stipulated that all orders and rulings herein mentioned and made to motions herein mentioned and the decision of the court thereon were and are duly excepted to by appellants; * * * that the motions of the defendants and appellants Anna Laura Barnett and Maxine Sturges to dismiss and to strike from plaintiff’s bill of complaint applied to the original petition, its amendment, and the amended bill of complaint.”
It is also stipulated that at the beginning of the trial the defendants and appellants objected to the introduction of any evidence on the ground that the plaintiff and appellee had no legal capacity to sue and that said objection was overruled by the court.
It was further stipulated that certain questions, fifteen in number, are presented to be passed upon in this appeal.
In so far as the stipulation purported to state certain propositions of law to be decided by this court upon appeal, it departs from rule 77 and must be disregarded. The parties have no right to determine by stipulation the questions to be decided on appeal. The purpose of rule 77 is to permit a succinct statement of the record so as to show how the questions to be submitted to the appellate court arose and were decided in the District Court.
Under the head of “Specification of Errors” in appellants’ brief we find the following statement:
“The assignment of errors lists 11 assigned errors. After it was filed, counsel for appellants and for respondent stipulated that the appeal be prosecuted on the judgment roll and certain questions specially presented by the stipulation. In briefing appellants’ cause it has been found helpful to combine some of those points. All of them are defects appearing on the face of the record. They were first presented by defendants’ motion to dismiss, at the trial by defendants’ objection to the introduction of any evidence, and at the close of plaintiff’s case by the motion to strike all evidence, and for judgment for defendants. Now they arise naturally in an appeal on the judgment roll, except where otherwise noted. Appellants contend that the court committed error in denying said motions and that the decree is fatally defective, in the following particulars:
“I. The United States is without guardianship power or legal right to sue as plaintiff to nullify the marriage of Jackson Barnett. * * *
“II. The attempt on the part of the United States to interfere with the marriage of the Barnetts is an unconstitutional interference with their rights as citizens. * * *
“III. Assuming that the United States had the guardianship power or legal right to maintain an action to nullify the marriage, the United States District Court had no jurisdiction over the action pertaining to the marriage or the power to ffecree the marriage a nullity. * * *
“IV. Assuming’ that the United States had the guardianship power and the legal right to maintain the action to nullify the marriage, and the District Court jurisdiction over such an action, they both fall short of the power to annul the marriage, and the marriage is therefore valid.
“V. Assuming that the United States had the guardianship power and legal right to sue to nullify the marriage and the United States District Court jurisdiction over, sitch an action, relief should be refused because of laches, and plaintiff should be es-topped to maintain the action to nullify the marriage. * * *
“VI. The amended bill of complaint contains a misjoinder and multiplicity of causes of action, and violates Equity Rule 26 [28 U.S.C.A. following section 723] * *
“VIII. The amended bill of complaint is fatally defective in that there is a nonjoinder of necessary parties defendant. * * *
“X. The plaintiff did not have the right to sue to recover property previously held as restricted for the benefit of Jackson Barnett, which was released from such restriction by the Secretary of the Interior in the exercise of his discretion.”
These specifications are scattered through 108 pages of appellants’ brief. Each specification of error in the brief should state the particular ruling claimed to be erroneous and the assignment or assignments of error upon which the specification is based. , The specifications in the appellants’ brief are defective, in that they do not refer at all to the assignments of error upon which they are predicated and lump together a number of rulings which are claimed to be erroneous without designating which particular ruling is complained of.
If the only difficulty in considering the appeál arose from defective specifications of error in appellants’ brief because of their failure to conform to the rules of this court, we would afford an opportunity to the appellants to file a new brief with the proper specifications. But, in view of the fact that under the statement on appeal we have nothing properly before us but the question as to whether or not the bill of complaint states a cause of action and as to whether or not the decree rendered was within the jurisdiction of the court, we will proceed to a determination of those matters without calling for a new brief on the* part of the appellants. In so doing we shall assume that it was the intention of the appellants by the above specifications to specify the alleged error of the trial court in denying their motion to dismiss upon the ground that the bill did not state a cause of action on behalf of the United States and to the alleged excess of jurisdiction in the remedy granted.
Aside from the description of the real estate contained in the complaint, which had been purchased by or on behalf of the appellant Anna Laura Barnett from said fund of $550,000, the facts alleged in the bill of complaint herein can be ascertained by reference to a number of decisions heretofore rendered which recite the circumstances under which $1,100,000, including the $550,000-herein involved, was procured from the Secretary of the Interior from the funds of Jackson Barnett by fraud. This renders it unnecessary to make an elaborate statement of the same facts in this opinion. Therefore, to avoid a more detailed statement of facts involved in the case at bar, we refer to such cases. Barnett v. Equitable Trust Co. of New York (D.C.) 21 F.(2d) 325, 333; Id. (C.C.A.) 34 F.(2d) 916; United States v. Equitable Trust Co. of New York, 283 U.S. 738, 739, 51 S.Ct. 639, 75 L.Ed. 1379; United States v. Mott (D.C.) 33 F.(2d) 340; Id. (C.C.A.) 37 F.(2d) 860; Mott v. United States, 283 U.S. 747, 51 S.Ct. 642, 75 L.Ed. 1385. These cases hold that the fund of $1,100,000 belonging to Jackson Barnett was obtained from the Secretary of the Interior, its lawful custodian, while Jackson Barnett was incompetent to draw upon the fund or to contract matrimony, by means of an order obtained by the appellant Anna Laura Barnett, who had kidnapped Barnett, taken him to Kansas, and then to Missouri, in each of which states a purported marriage ceremony was staged. A portion of this $1,100,000 is wrongfully in the custody of the appellant and in the other defendants.
According to allegations and findings in the case at bar, Jackson Barnett was wholly incapable of understanding the nature of a marriage contract or of the obligations thereby assumed. He did not have sufficient mental capacity to marry. After this purported marriage, Jackson Barnett was induced to make a thumbprint upon the order for the release of the $1,100,000 above referred to. This act was without comprehension on his part of the significance of it or any knowledge of the contents of the document to which he attached his thumbprint, and without any capacity to understand such an instrument. These facts were alleged and proved, and the record is conclusive against the appellants upon that subject.
Appellants contend this action cannot be maintained by the United States on behalf of the Indian, Jackson Barnett. The decisions to which we have already referred, dealing with this very transaction, establish the error of this contention, for it is held in these cases that the United States is the proper party to-act for recovery of the funds in question.
In so far, then, as the action at bar is an action by the United States on behalf of Jackson Barnett to recover a portion of the $1,100,000 fund secured from the Secretary of the Interior by fraud, the right to maintain the action is established beyond controversy by the hereinbefore mentioned decisions dealing with this same transaction.
The bill of complaint herein, in addition to the recovery of the land and property above mentioned, prayed for a decree of the court that the alleged marriage between Jackson Barnett and the appellant Anna Laura Barnett was wholly void, and the court so decreed.
The appellants claim that the lower court had no jurisdiction to declare the marriage void because jurisdiction of such matters is vested in state courts and not in federal courts. The appellee predicates jurisdiction upon the original cause of action to recover the trust fund, and claims that the adjudication declai-ing the marriage void is a corollary thereto because it is the duty of the United States to administer the funds already recovered, those to be recovered, and the other income derived from the oil property of Jackson Barnett and to distribute such property upon his death to his widow, if any, or, if not, to retain the property for the benefit of his Indian heirs. It is therefore essential that the United States shall have the marital status of the Indian determined in order to properly perform its duty as trustee of the fund and as guardian of the Indian heirs of Jackson Barnett, for there are no children of the alleged marriage and Jackson Barnett had no descendants. His nearest relatives. according to the allegation of the complaint and finding of the trial court, were nieces and nephews who were all full-blooded Indians. It has been held that a declaration of the invalidity of a marriage may be a proper subject for adjudication in an action brought by a guardian of the property of one of the alleged spouses as an incident to the management of the estate. The Supreme Court of Ohio in Waymire v. Jet-more and Spencer, 22 OhioSt. 271, where a guardian brought an action to have a marriage of his ward declared void because of mental incapacity, said:
“Social order and public decency demand that the parties to a meretricious relation, in which the forms of marriage, apparently legal, seem to bind them, should be judicially relieved therefrom. This alone is sufficient cause for the interference of whatever tribunal possesses the adequate powers. But the succession of property and the legitimacy of inheritance, which the law regards with peculiar jealousy, furnish a no less controlling motive for such interference. The want of consenting capacity, resixlting from causes other than infancy, which is generally declared and the period thereof fixed by statute, is determinable in every instance by the testimony of witnesses only. Therefore, while the parties are in esse, and the witnesses accessible, it is of the greatest importance that every cloud which might obscure the succession or involve the inheritance, should be removed, rather than remain to foster future and consuming litigation. To this end a court of equity, in the exercise of its ordinary powers, will entertain jurisdiction, at the suit of the imbecile’s guardian, to declare his marriage a nullity, as it does to order the surrender and cancellation of a forged or otherwise void instrument.”
In Counts v. Counts, 161 Va. 768, 172 S. E. 248, decided January, 1934, the Supreme Court of Appeals of Virginia had under consideration a suit in chancery to annul the marriage of Jessee Counts to Lillian Counts on the ground of the insanity of Jessee Counts at the time of the marriage. The suit was instituted by E. V. Counts, committee for Jessee Counts. The defendant contested the right of the committee of an insane person to bring such a suit. Section 5088, Code Virginia 1930, provides that “all marriages * * * solemnized when either of the parties was insane * * * shall, if solemnized within this State, be void from the time they shall be so dedared by a decree of divorce or nullity.” Section 5100 of that Code provides that, “when a marriage is supposed to be void for any of the causes mentioned either in section * * * five thousand and eighty-eight, * * * either party may, except as is provided in the next section, institute a suit for annulling the same; and, upon due proof of the nullity of the marriage, it shall be decreed to be void.” Under these statutes it was held that the committee had the right to institute á suit to annul the marriage. The court quoted and approved Bishop on Marriage, Divorce and Separation, vol. 2 (6th Ed.) §§ 527, 528, as follows :
Section 527: “If an insane person is entrapped into a form of ceremony of marriage, reason would indicate that his guardian or committee should be permitted during the continuance of the insanity to institute and carry on a proceeding to have it declared woid. And so the law is believed to be, not absolutely without qualifications, both with us and in England.”
Section 528: “The insane person, whether plaintiff or defendant, * * * must sue or defend by guardian ad litem, or committee. Precisely how this shall be will depend largely on the varying statutes of our states, and on the practice of the particular court.”
From the decisions it is clear that a declaration of the nullity of a marriage, void because of the incapacity of the ward, is appropriate in an action by the guardian of the ward’s estate, and in a proper case is ancillary to the administration of the estate. We think it clear that the remedy sought by the government herein was ancillary to the main purpose of this action.
Appellants contend, however, that the District Court had no jurisdiction over a suit to annul a marriage, citing Barber v. Barber, 21 How. (62 U.S.) 582, 16 L.Ed. 226; In re Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500; Simms v. Simms, 175 U.S. 162, 20 S.Ct. 58, 44 L.Ed. 115; Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1; De La Rama v. De La Rama, 201 U.S. 303, 26 S.Ct. 485, 50 L.Ed. 765. Appellants particularly rely upon Barber v. Barber, supra, wherein the Supreme Court disclaimed any federal jurisdiction upon the subject of divorce. This is not a suit to annul a marriage. Federal jurisdiction is predicated upon the Constitution of the United States (article 3, § 2), which provides that the judicial power of the United States shall extend “to controversies to which the United States shall be a Party.” It is difficult to escape the conclusion that this is a controversy to which the United States is a party, and, consequently, that the federal courts have jurisdiction thereof. U.S.Const., art. 3, § 2. The jurisdiction of a court of equity to entertain such a suit is affirmed in Sharon v. Hill (C.C.) 20 F. 1; Id. (C.C.) 22 F. 28; Id. (C.C.) 26 F. 337; Sharon v. Terry (C.C.) 36 F. 337, 1 L.R.A. 572, where the purpose of the action was to prevent the defendant from using a forged marriage contract as evidence of an alleged marriage. One of the purposes of the suit is to prevent the use of the fraudulent and void marriage certificate and ceremony as evidence in future dealings between the United States and the appellant Anna Laura Barnett. It follows that this suit is an action in equity within the meaning of the Judicial Code § 24 (28 U.S.C.A. § 41), giving jurisdiction to the District Court. It follows that the trial court had jurisdiction to enjoin the use of such evidence, as it did.
Here it may be appropriately added that, before the formal decree was filed, Jackson Barnett died, and the court entered a nunc pro tunc decree as of the date of the announcement of the decision, which was in writing and signed by the judge. This was proper. See annotations to In re Estate of Cook (Cal.) 1 L.R.A. 567; Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804; Majestic Elec. Dev. Co. v. Westinghouse Elec. & Mfg. Co. (C.C.A.) 276 F. 676.
Decree affirmed.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
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songer_origin
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H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
WEMYSS v. COMMISSIONER OF INTERNAL REVENUE.
No. 9724.
Circuit Court of Appeals, Sixth Circuit.
July 24, 1944.
Writ of Certiorari Granted Dec. 4, 1944.
See 65 S.Ct. 270.
Cecil Sims, of Nashville, Tenn. (J. W. Allen, Cecil Sims, and Bass, Berry & Sims, all of Nashville, Tenn., on the brief), for petitioner.
I. Henry Kutz, of Washington, D. C. (Samuel O. Clark, Jr., Sewall Key, Robert N. Anderson, and I. Henry Kutz, all of Washington, D. C., on the brief), for respondent.
Before HICKS, SIMONS, and MARTIN, Circuit Judges.
MARTIN, Circuit Judge.
This gift tax litigation stems from a prenuptial contract in writing, dated May 24, 1939, between the petitioner, William H. Wemyss, and a widow, Mrs. Ellen Stokes More, whom he married on June 20, 1939. Sometime prior to the execution of the contract, petitioner made a proposal of marriage to Mrs. More. Her answer was that she would be unwilling to marry him and lose in consequence a life income provided for her “until her remarriage” under trust indentures executed by her deceased husband, E. L. More, unless petitioner would enter into a premarriage contract to make good her loss.
Petitioner agreed to meet her requirements, even to the detail of the securities to be transferred to her. Her father, who was a lawyer, prepared the premarriage contract with succinct legal documentation. The widow exacted that the contract be carried out by the actual transfer and delivery to her of the stocks described therein prior to the performance of the marriage ceremony. The premarriage contract designated the date for the ceremony and the parties consummated the marriage as scheduled.
The agreement recited that upon consummation of the marriage, Mrs. More would be deprived of a large monthly income, and that it was the desire and intention of the petitioner to compensate her for such loss and to provide and maintain her permanently in keeping with her station in life. The 13,139 shares of common stock of General Shoe Corporation which were transferred and delivered to Mrs. More on the date of the execution of the contract were described by certificate number. The contract was acknowledged by the two parties, and on the day following the marriage ceremony was recorded in the register’s office of their resident county in Tennessee.
Immediately after the marriage, the petitioner executed a will, in which he provided that his wife should have a life estate during widowhood in a certain farm and that one-third of his estate, less the value of all except 2,000 shares of General Shoe Corporation stock already transferred, should be held in trust for her.
The corpus of the trust estate, in which the former Mrs. More lost her interest upon remarriage, consisted of 670 shares of stock in the Arcade Company of Nashville, Tennessee. The trust indenture executed by her first husband provided that the entire net income of the trust estate should be paid to her during her lifetime, or until her remarriage, for the maintenance and support of herself and their son. The trusts, however, were separate and independent trusts for the widow and for the son. From February 9, 1934, to June 20, 1939, Mrs. More had received $29,428.89 from the trusts created by her first husband, as income for her own use, and an equal amount for the use and benefit of her son.
At the time Mrs. More entered into the marriage contract with the petitioner, William H. Wemyss, she was 44 years of age and he was 59.
On this state of facts, the Commissioner of Internal Revenue determined that the transfer by petitioner to Mrs. More, on May 24, 1939, of the 13,139 shares of General Shoe Corporation stock, was not for a consideration in money or money’s worth, and accordingly that the transfer constituted a gift of an amount equal to the value of the stock, which he determined to be $149,456.13. The United States Tax Court, one judge dissenting, upheld the commissioner in his determination of a tax deficiency against the petitioner upon that basis; and the taxpayer, by appropriate petition, has brought the case here for review.
The tax court conceded the correctness of petitioner’s contention that the agreement to marry constituted a valuable consideration for the transfer of the stock. Prewit v. Wilson, 103 U.S. 22, 26 L.Ed. 360; Barnum v. Le Master, 110 Tenn. 638, 73 S.W. 1045, 69 L.R.A. 353. It was, therefore, declared that no taxable gift was made, if only section 501(a) of the Revenue Act were to be considered.
But the tax court held that the transfer was made for less than an adequate and full consideration in money or money’s worth and was therefore subject to gift tax under section 503 of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev.Acts, page 585, which provides: “Where property is transferred for less than an adequate and full consideration in money or money’s worth, then the amount by which the value of the property exceeded the value of the consideration shall, for the purpose of the tax imposed by this title, be deemed a gift, and shall be included in computing the amount of gifts made during the calendar year.” Marriage, as a consideration, was deemed immeasurable in money or money’s worth, and the value of the property transferred was held to be the amount taxable as a gift, not to be reduced by the" value of the wife’s interest in her first husband’s trusts lost by her upon her marriage to petitioner.
The tax court construed section 503 of the Revenue Act as supplementary to section 501, and as manifesting the intention of Congress to include within the category of gift taxation not only a transfer which constituted a gift at common law but also a transfer of property for less than an adequate and full consideration in money or money’s worth. A promise of marriage was not deemed by the court to be such consideration. .Articles 1 and 8 of Treasury Regulations 79 were stressed as definitive and binding, especially in view of the repeated re-enactment of the statute which these regulations construed. Helvering v. Winmill, 305 U.S. 79, 59 S.Ct. 45, 83 L.Ed. 52, and Taft v. Commissioner, 304 U.S. 351, 58 S.Ct. 891, 82 L.Ed. 1393, 116 A.L.R. 346, were cited.
The tax court reasoned that, assuming the loss by the wife of the income from the trusts created by her first husband was the consideration for the transfer to her of the Shoe Corporation stock “rather than a mere consequence of the marriage,” the petitioner could not prevail for the reason that he acquired no right in or income. from the trusts but received merely a promise of marriage, not measurable in money or money’s worth. It was considered that the word “gift” must necessarily be construed in the broadest and most comprehensive sense. Robinette v. Helvering, 318 U.S. 184, 63 S.Ct. 540, 87 L.Ed. 700; Smith v. Shaughnessy, 318 U.S. 176, 63 S.Ct. 545, 87 L.Ed. 690.
The court pointed out that unless the gift tax should be imposed when the transfer was made, the excise upon the transfer would be “altogether escaped;” and that the gift tax and the estate tax are in pari materia, an important purpose of the former being to prevent or compensate for avoidance of death faxes by taxing gifts of property inter vivos which, except for the gifts, would be subject to the tax upon transfers at death. Estate of Sanford v. Commissioner, 308 U.S. 39, 60 S.Ct. 258, 84 L.Ed. 20. It was thought reasonable to assume that Congress, being aware that “a transfer in consideration of marriage would not be a true gift since it would be based upon a valuable consideration,” deliberately adopted language with intent to close the door against “this method of escaping tax upon a transfer of property,” even though the transfer, as concededly in the instant case, may not have been animated by a tax-saving motive. The treasury regulations were regarded as correctly interpreting the law; and, as so construed, section 503 was held, contrary to the contention of the petitioner, not to be violative of the Fifth Amendment to the Federal Constitution.
A further reason for rejecting the petitioner’s claim for refund was found by the tax court in petitioner’s failure to prove the actual value of his wife’s interest under the trusts established by her first husband. Passing comment was made, moreover, that the interest in the trust estate surrendered by Mrs. More upon her marriage to petitioner inured entirely to the benefit of her infant son.
Inasmuch as we are not in accord with the decision of the tax court, due deference has caused our somewhat detailed narrative of its rounded viewpoint. To our thinking, the correct basis of decision here is simple. The record reveals in actuality no semblance of a premarriage gift of stock by the petitioner to his affianced. She bargained with him at arm’s length before she cut herself off by remarriage from her interest in the trust estate created by her first husband. She sustained a very real and substantial detriment as the consideration for her promise to marry the petitioner. This detriment was definitely measurable in money or money’s worth. The circumstances that the money detriment which she sustained did not move to the benefit of petitioner except in the acquisition of the lady of his choice as wife does not lessen the businesslike nature of the transaction. The tax court itself found no evidence of an actual donative intent upon the part of petitioner in transferring the stock.
We do not read section 503 of the revenue act as requiring its application to a case where a detriment, measurable in money or money’s worth, suffered by the transferee does not inure to the benefit of the transferor in money or money’s worth. True it is that Congress could tax a transfer whether or not made with donative intent ; but when section 503 is construed, as supplementary to section 501, as the tax court construed it and as we think it should be construed, the donative intent must exist in order to subject the transfer of the property to taxation as a gift. If Article 8 of Regulation 79 be interpreted as extending gift tax liability beyond the plain language of the statute, re-enactments of the statute do not constitute an adoption by Congress of the administrative construction. See Busey, Collector of Internal Revenue v. Deshler Hotel Co., 6 Cir., 130 F.2d 187, 142 A.L.R. 563, for full discussion.
But we do not regard Article 8 of Regulation 79 as applicable to the facts of this case. The transfer of the property involved herein was not for a consideration of a mere promise of marriage; the consideration for the transfer was not only a promise to marry but a concomitant surrender by the transferee of a life income in an existing trust fund.
It is idle to argue that any importance attaches to the fact that Mrs. More forfeited her interest' in the trust fund of her first husband when she became Mrs. Wemyss and not when she promised to become Mrs. Wemyss. She kept her promise to become Mrs. Wemyss and thereby incurred the loss of her interest in the trust fund. The detriment she suffered in money or money’s worth was as real when viewed from the one time-point as from the other; and the consideration paid her was as valuable at the one time as at the other.
This case differentiates from those cases in which prospective husbands and wives have entered into prenuptial agreements as to- the interest to be acquired by the lady in the property and estate of the gentleman. In these cases the prospective wife was agreeing to surrender only herself to the bonds of matrimony without an accompanying surrender of any property owned by her. She was providing against the exigencies of matrimony by fixing a definite basis for her participation in the property or estate of the man she was about to marry. For example, see Commissioner of Internal Revenue v. Bristol, 1 Cir., 121 F.2d 129.
Here the prospective wife was not contracting concerning the subject matter of her interest in the estate of the prospective husband. She was agreeing upon a present transfer made to indemnify her against loss of existing property rights which would ensue in consequence of her remarriage.
Furthermore, the Wemyss transfer is completely disassociated from any indicia of an intent to avoid or reduce death taxes. The minds of the contracting parties at the time of the transfer were obviously upon their future life together and not upon the effect of the transfer in the event of the death of either. In no aspect was the transfer made in contemplation of death.
Authorities pertaining to property settlements in relation to divorce bear no relevancy here and will not be cited or discussed.
This case is sui generis, easily and correctly justiciable upon simple grounds. Manifestly, there was no donative intent in the transfer sought to be taxed as a gift and the transfer itself was not a donative action, within the meaning of section 503 of the Revenue Act or any other sections of the Gift Tax Statute.
In view of our interpretation of section 503 in its relation to the instant controversy, it is unnecessary to consider the argument of petitioner that, should the statute be construed as arbitrarily taxing bona fide transfers for a valuable consideration when not in fact gifts nor intended or capable of being employed to evade the gift tax, the section would be violative of the Fifth Amendment to the Constitution of the United States. Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772.
In our judgment, the law does, not require that the difference in value between that which petitioner conveyed to his affianced and that which she surrendered in money or money’s worth by marrying him • be calculated and the excess value taxed under section 503. Compare Herbert Jones v. Commissioner, 1 T.C. 1207; Lasker v. Commissioner of Internal Revenue, 7 Cir., 138 F.2d 989.
What she surrendered in good faith was of quite substantial value in money’s worth and was a sufficiently real consideration in money’s worth to negative a gift-motive concept in the excess in value of the property transferred. We are not in accord with the opinion expressed by the majority of the Court of Appeals for the Ninth Circuit in Commissioner of Internal Revenue v. Greene, 119 F.2d 383, 386. We find the reasoning in Lasker v. Commissioner of Internal Revenue, supra, more congenial to our own views. This court has previously expressed, in the language of Judge Hamilton, its concept of the meaning of .the word “gift” in the revenue statutes. Commissioner of Internal Revenue v. Montague, 6 Cir., 126 F.2d 948, 951.
A donative intent followed by a do-native act is essential to constitute a gift; .and no strained and artificial construction of a supplementary statute should be indulged to tax as a gift a transfer actually lacking donative intent.
The decision of the Tax Court is reversed.
“Sec. 501. Imposition of Tax. (a) For the calendar year 1932 and each calendar year thereafter a tax, computed, as provided in section 502, shall be imposed upon the transfer during such calendar year by any individual, resident or nonresident, of property by gift.” 26 U.S.C.A. Int. Rev.Acts, page 580.
“Art 1. * * * The tax is not limited in its imposition to transfers of property without a valuable consideration, which at common law- are treated as gifts, but extends to sales and exchanges for less than an adequate and full consideration in money or money’s worth (See Article 8). * * *
“Art; 8. Transfers reached by the statute are not confined to those only which, being without a valuable consideration, accord with the common law concept of gifts but embrace as well sales, exchange, and other dispositions of property for a consideration in money or money’s worth to the extent that the value of the property transferred by the donor exceeds the value of the consideration given therefor. * * * A consideration not reducible to a money value, as love and affection, promise of marriage, etc., is to be wholly disregarded, and the entire value of the property transferred constitutes the amount of the gifts.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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songer_respond1_1_4
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
HORN & HARDART COMPANY, Appellant v. NATIONAL RAILROAD PASSENGER CORPORATION.
No. 85-5722.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 20, 1986.
Decided June 17, 1986.
J. Skelly Wright, Senior Circuit Judge, dissented and filed an opinion.
Allen R. Snyder, Washington, D.C., with whom Robert J. Elliott and Stephen A. Goldberg, Washington, D.C., were on brief, for appellant.
John C. Morland, with whom Christopher M. Klein, Washington, D.C., was on brief, for appellee.
Before: STARR and BUCKLEY, Circuit Judges, and WRIGHT, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge STARR.
Dissenting opinion filed by Senior Circuit Judge WRIGHT.
STARR, Circuit Judge:
This appeal is taken from the District Court’s grant of summary judgment in favor of the National Railroad Passenger Corporation, more commonly known as “Amtrak.” The issue presented is whether the trial court erred in its interpretation of termination provisions contained in three 1980 leases between Amtrak, as owner of the Pennsylvania Station in New York City, and The Horn & Hardart Company, the proprietor of several commercial establishments situated within Penn Station. Horn & Hardart contends that the District Court improperly granted summary judgment in the face of a need for further factual development both as to the meaning of the termination provisions and as to whether the facts, as ultimately adduced, would have warranted Amtrak’s invocation of these clauses. While Horn & Hardart’s arguments are not without force, we are persuaded in the end that the District Court’s disposition of this case is correct. We therefore affirm.
I
Horn & Hardart is a familiar corporate face in New York. Its operations extend underground, as it were, to include within the confines of Penn Station three restaurant and cocktail lounge operations each of which is the subject of a separate lease. The three leases contain identical provisions in respect of termination, permitting that power to be invoked by Amtrak:
in the event that [Amtrak] shall require the demised premises for its Corporate purposes ..., or in case of the proposed re-construction or demolition of the terminal building in which the demised premises are located (resulting thereafter in the re-construction or demolition thereof)____
In November 1984 Amtrak dispatched to Horn & Hardart termination notices with respect to all three leases. Amtrak’s stated reason for displacing its long-standing lessee was to permit construction of an ambitious project, duly approved by Amtrak’s board of directors, to modernize Penn Station pursuant to a master plan. As represented to the court below, “Amtrak’s current intention is to reconstruct the portion of Pennsylvania Station in which the demised premises are located so that a new ticket facility can be installed on the premises ... occupied by [Horn & Har-dart].” Amtrak’s Statement of Material Facts As To Which There Is No Genuine Dispute 117.
Horn & Hardart challenged Amtrak’s use of the termination clause, repairing to United States District Court here in Washington, Amtrak’s corporate situs and the jurisdiction whose law governs the three leases in accordance with' applicable federal law. 45 U.S.G. § 546(d) (1982). Horn & Hardart averred that since the Penn Station operations commenced in 1967 the Company had expanded substantial sums to improve the leased premises, as most recently evidenced by the conversion in 1980 of a “Horn & Hardart” coffee shop to an “Arby’s” and the modernization of its two other premises, the “Iron Horse” and the “Dolphin Bar,” in which approximately $1 million had previously been invested. To protect its sizable investments, Horn & Hardart argued, the Company had not only negotiated long-term leases but had succeeded in limiting substantially Amtrak’s powers of termination. Specifically, the parties had agreed to the language, which we have quoted above, only after Horn & Hardart had fended off in negotiations a considerably more sweeping termination clause advanced by Amtrak which would have empowered the latter to terminate the leases (upon ninety days’ written notice)
in case [Amtrak] shall desire to use the demised premises, or any portion thereof, either for itself or through agreement with others for transportation or public service purposes, or for construction, reconstruction ... of that portion of the building of which the demised premises constitute a part____
The upshot of this successful negotiation effort, Horn & Hardart maintained,
was to restrict Amtrak’s right to terminate the leases to situations which would “require” termination because of activities affecting Amtrak as a corporate entity, and to situations involving reconstruction or demolition of the entire “terminal building” in which the leased premises were located, as compared with reconstruction or demolition “of that portion of the building” of which the leased premises were a part.
Verified Complaint 1111, at 5-6.
Arguing that Amtrak’s purported terminations were entirely inadmissable under the express terms agreed to by the parties, Horn & Hardart sought a declaration that the terminations were unlawful, an injunction prohibiting Amtrak from seeking to evict or otherwise remove Horn & Hardart from the premises, and compensatory damages of not less than $2.5 million.
Amtrak promptly moved to dismiss the complaint or, alternatively, for summary judgment. Inasmuch as Amtrak submitted evidence outside the pleadings, the District Court treated the motion as falling into the latter category, see Fed.R.Civ.P. 12(b)(6). The court ruled in favor of Amtrak, concluding, in brief, that the operative words of the termination clause, namely “require[d] ... for Corporate purposes” were unambiguous and thus amendable to authoritative judicial construction. As to the term “require,” the court determined that “[bjoth the plain meaning of the word [“require”] as used in the leases and case law supports Amtrak’s position.” Memorandum Opinion at 6. In so concluding, the trial court rejected Horn & Hardart’s argument that, as evidenced by the Declaration of one of its officers who had conducted the lease negotiations on behalf of the Company, the term “require” was substituted for the term “desire” in order “to reflect the fact that the leases could be terminated only if termination was mandatory or indispensible.” Id. at 8. See Horn & Hardart’s Opposition to Defendant’s Motion to Dismiss at 12 (“[T]he Leases use ‘require,’ which in this context clearly means ‘to demand as necessary or essential’ or ‘to make indispensable.’ ”) (citation omitted). So too, the District Court eschewed the Company’s interpretation of “Corporate purposes,” which Horn & Har-dart construed to mean “that Amtrak may take Horn & Hardart’s space only when such space is indispensable for Amtrak’s continued existence as an entity which provides ‘intercity and commuter rail service.’ ” Opposition at 19 (citation omitted). In the trial court’s view, this proffered construction was “unduly narrow.” Memorandum Opinion at 8. Invoking “plain meaning,” the court determined:
[I]t is obvious that Amtrak’s use of Horn and Hardart’s space for expanding ticket counter and waiting room facilities is for Amtrak’s corporate purposes of providing modern, cost-efficient, intercity passenger rail transportation service.
Id. at 9.
Looking to the uncontradicted evidence as to the use to which the leased premises would in fact be put, the court concluded that “Amtrak has the right to terminate the leases in order to expand its ticket counter and waiting area because Amtrak ‘requires’ the demised premises for its ‘Corporate purposes.’ ” Id. at 9. In so doing, the court construed what it viewed as the critical term, “require,” as “necessary or needed,” not, as Horn & Hardart vigorously argued, “mandatory or indispensable.” Id.
II
On appeal, Horn & Hardart’s principal argument is that the lease terms were infected by “patent ambiguity.” Brief for Appellant at 10, thus rendering the contract dispute unsuitable for summary judgment. To compound this threshold legal error, the Company contends, the District Court’s summary disposition resurrected Phoenix-like the sweeping, pro-Lessor termination clause that the parties, by virtue of Horn & Hardart’s effective negotiation efforts, had discarded. That is to say, “[t]he trial court’s interpretation is tantamount to construing the word ‘require’ to mean ‘desire.’ ” Id. at 14. This fundamental legal error, the Company asserts, had the effect of cutting off, without warrant, the development of “relevant facts” through “essential discovery,” id. at 15, all in derogation of the orderly procedures contemplated by the Federal Rules of Civil Procedure, especially Rule 56(f).
The Company suggests that the court below, remaining as it did on high legal ground instead of delving into the facts, ignored the incongruence of its legal pronouncements with the facts themselves. Such facts include facial alterations to the Arby’s lease and Horn & Hardart’s acceptance of Amtrak’s sweeping termination clause in a contemporaneously executed lease for retail space (aside from the three leases at issue here). What is more, the Company argues, the pivotal term, “Corporate purposes,” is not only ambiguous but is clearly less expansive than Amtrak’s proffered interpretation, which would encompass any corporate activity that does not stray beyond the outer perimeter of the ultra vires doctrine. This extraordinary sweep, the Company maintains, could not possibly have been intended by the parties inasmuch as the parties in their negotiations modified the termination provision so as to substitute “Corporate purposes” for “transportation or public service purposes.” Taken together, the pro-Horn & Hardart modifications to the lease provisions were meant, as the Company sees it, to restrict Amtrak’s right to terminate. The District Court’s pre-trial disposition, Horn & Hardart argues, permits Amtrak unfairly to claim victory in the courthouse despite its defeat at the negotiating table.
To exacerbate matters, the Company goes on, Amtrak is thereby permitted to effect a forfeiture of Horn & Hardart’s valuable leasehold interests, a result disfavored by the more merciful principles animating courts of justice in construing contracts. Finally, in Horn & Hardart’s view, the District Court’s interpretation has rendered surplusage the “re-construction” provision in the termination clause, which limits Amtrak’s right to abrogate the leases to when the terminal building — not just the portion of the building of which the leased premises are a part — is reconstructed.
Ill
Notwithstanding the able arguments of counsel for the Company, we find ourselves in full agreement with the District Court’s pivotal determination that the contract language is properly amenable to dispositive interpretation as a matter of law. Consistent with applicable law, see, e.g., Clayman v. Goodman Properties, Inc., 518 F.2d 1026,1034 (D.C.Cir.1974), the District Court turned to the language of the contract itself to determine whether the provision was ambiguous. As the District Court rightly said, the construction of unambiguous contractual language is a matter of law entrusted to the court. Washington Metropolitan Area Transit Authority v. Mergentime Corporation, 626 F.2d 959, 961 (D.C.Cir.1980). The issue, then, is whether the language that has so sharply divided the parties is, in truth, reasonably susceptible of different construction or interpretations. Papago Tribal Utility Authority v. FERC, 723 F.2d 950, 955 (D.C.Cir.1983), cert. denied, 467 U.S. 1241, 104 S.Ct. 3511, 82 L.Ed.2d 820 (1984).
We conclude that the District Court’s interpretation of the language, based upon its plain meaning, is unimpeachable. Horn & Hardart’s construction of the contract, whether it is based on the term “corporate purpose” alone or on the juxtaposition of the terms “require” and “corporate purpose,” is not yielded by a fair examination of the language itself. The sole interpretation advanced by the Company before the District Court and on appeal is, as we have seen, that Amtrak can lawfully trigger the clause “only if termination was mandatory or indispensable” for Amtrak’s corporate purposes. Opposition at 8; see also Reply Brief for Appellant at 4-5. This is a reading to which the actual language does not reasonably admit. Corporate life and death does not have to be on the line to “require [space] ... for Corporate purposes.” We concur fully with the able District Judge’s view that the Company’s strained interpretation “would render the termination provision virtually useless and would be inconsistent with Amtrak’s mandate from Congress to provide modern, efficient, rail passenger service.” Memorandum Opinion at 6.
Contrary to Horn & Hardart’s assertions, our rejection of its corporate life-and-death standard does not render the termination provision operable at the whim of the landlord. The undisputed evidence shows that Amtrak did not terminate the Company’s lease in order to secure a more lucrative leasehold arrangement. Rather, Amtrak, pursuant to a broad plan of substantial improvements to Penn Station, sought to employ the precise space occupied by Horn & Hardart for expanded ticket counter space and other, non-leasehold purposes. Those specific purposes, under the undisputed facts presented here, suffice to bring the lessor’s reason for termination within the plain meaning of the lease’s termination provision. That the use of the demised premises by Amtrak in this instance is “reasonably necessary” to give life to one of its general corporate purposes is further supported by Horn & Hardart’s acknowledgment that Amtrak could have terminated the leases pursuant to the leases’ condemnation clause, a provision which incorporates Amtrak’s right to acquire or take property when “required for intercity rail passenger service.” 45 U.S.C. § 545(d)(1) (1982).
Horn & Hardart’s remaining concerns need not detain us. There is, fairly viewed, no “forfeiture” at work here since the leases either did (Arby’s) or could have contained a cancellation premium clause. Indeed, pursuant to the Arby’s cancellation premium clause, Horn & Hardart in August 1985 received $180,000 from Amtrak; what is more, the original 1967 lease likewise contained a cancellation premium clause. The disincentive of a cancellation premium clause constituted the specific protective mechanism to which the parties agreed.
We are similarly unpersuaded that the District Court’s reading of Part 1 of the termination clause (“require ... for Corporate purposes”) renders surplusage the provisions of Part 2 of the clause (“re-construction”). The clauses do indeed overlap in this particular setting, but overlap in one situation cannot properly be equated with the unhappy condition of “surplusage.” For it appears to us that the latter Part— the “reconstruction” portion of the clause — may have efficacy in other settings, such as where reconstruction might be forced on Amtrak by, say, Madison Square Garden which sits atop the subterranean provinces of Penn Station.
Finally, we observe merely in passing that the acceptance of Horn & Hardart’s plea that this case move beyond the summary-judgment station and onto the tracks of discovery and trial would likely lead to a highly extensive factual undertaking as to the “indispensability” of the substantial improvements project now underway and approved by the Amtrak board of directors. The unlikelihood that the parties contemplated such a result fortifies us in our conclusion, reached independently for the reasons heretofore stated, that the plain language of this provision reasonably admits only of the construction discerned by the District Court.
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_genapel2
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
UNITED STATES of America, Plaintiff-Appellee, v. BOB STOFER OLDSMOBILE-CADILLAC, INC., Jack W. Graham, First National Bank of Effingham as Trustee of Trust No. 221, Sam P. Sgro, and Bernard O. Nelson, and Washington Savings & Loan Association, Defendants, Robert H. Stofer and Marcia I. Stofer, Defendants-Appellants.
No. 84-2325.
United States Court of Appeals, Seventh Circuit.
Argued April 8, 1985.
Decided July 10, 1985.
Bruce E. Reppert, Asst. U.S. Atty., East St. Louis, 111., for plaintiff-appellee.
Guy E. McGaughey, Jr., McGaughey & McGaughey, Lawrenceville, 111., for defendants.
Before BAUER and POSNER, Circuit Judges, and PECK, Senior Circuit Judge.
. The Honorable John W. Peck, Senior Circuit Judge of the Sixth Circuit, is sitting by designation.
JOHN W. PECK, Senior Circuit Judge.
This case is before the court upon an appeal from the order of the district court granting summary judgment to the United States. For the reasons set forth below, we affirm.
Appellants Robert Stofer and Marcia Stofer (“the Stofers”) were the sole shareholders of Bob Stofer Oldsmobile-Cadillac, Inc. in Effingham, Illinois, a General Motors Corporation (“GM”) franchise. In October 1980, the Small Business Administration (“SBA”) loaned Bob Stofer Oldsmobile-Cadillac, Inc. $667,900.00, secured by a mortgage on the corporation’s business property, the Stofers’ personal residence, and a security agreement covering inventory and other collateral. In addition, Robert Stofer and Marcia Stofer each signed a personal guaranty. The note executed by the Stofers provided in part:
Holder is authorized to declare all or any part of the Indebtedness immediately due and payable upon the happening of any of the following events:
(4) The reorganization (other than a reorganization pursuant to any of the provisions of the Bankruptcy Reform Act of 1978, as amended) or merger or consolidation of the undersigned (or the making of any agreement therefore) without the prior written consent of the Holder____
In July 1982, the Stofers entered into an agreement for the sale of all of the stock in Bob Stofer Oldsmobile-Cadillac, Inc. to Sam P. Sgro, Bernard 0. Nelson, and Jack W. Graham for the sum of $20,000.00 plus an agreement by the buyers to hold the Stof-ers harmless from debts to the SBA and various financial institutions, as well as for unpaid taxes and payroll. The agreement was executed without the prior consent of the SBA; the SBA, however, was made aware of the transaction shortly after its occurrence.
A dispute arose between the Stofers and the buyers of Bob Stofer Oldsmobile-Cadillac, Inc. which resulted in a lawsuit in state court. The action centered around an alleged error in the legal description of the real property conveyed and upon GM’s refusal to transfer the franchise to the buyers, thus precluding them from operating the business as a GM dealership.
Following the purchase of the auto dealership in July 1982, Nelson and Graham operated the business, selling new and used cars and car parts. They made no loan payments to the SBA from the proceeds of the sale of the mortgaged assets. At about the same time the Stofers sold their interest in Bob Stofer Oldsmobile-Cadillac, Inc., the First National Bank of Effingham offered to bring the mortgage payment to the SBA current; the SBA refused to accept the delinquent payment offered on behalf of the Stofers. From July 1982 to April 1983, no payments were made to the SBA on the loan. The SBA made no demand for payment from the Stofers during that time period.
In April 1983, the United States instituted the present action in the United States District Court for the Southern District of Illinois. In its second amended complaint, the United States alleged two causes of action. The first cause sought the foreclosure of the mortgage on the real property of the auto dealership and the mortgage on the Stofers’ personal residence. The second cause of action sought an accounting of the collateral under the security agreement and a foreclosure of the same plus a personal deficiency decree against the Stofers, based upon their personal guaranty of the $667,900.00 loan.
In their answer, the Stofers pleaded affirmatively the indemnity and hold harmless provision of the July 1982 agreement. Their answer also contained the affirmative defenses of laches and delay of the SBA in exercising its rights under the security agreement. Specifically, the Stofers stated that the SBA allowed Sgro, Nelson, and/or Graham to dissipate the assets of Bob Stofer Oldsmobile-Cadillac, Inc., all to the Stof-ers’ detriment. Also in their answer, the Stofers filed cross-claims against Sgro, Nelson and Graham based on the indemnity agreement.
At a pre-trial conference held before the magistrate on July 14, 1983, the parties agreed that discovery could be completed by November 1, 1983. The court set that date as the deadline for completion of discovery, and scheduled a final pre-trial conference for December 1, 1983. At the December 1st conference, counsel for the Stofers sought and received a 30-day extension to complete discovery. A final pre-trial conference was set for January 5, 1984. On December 19, 1983, the Stofers’ counsel first filed a notice to take depositions.
On December 22, 1983, the United States filed a motion for summary judgment. During late December and early January, the Stofers’ attorney deposed cross-defendant Nelson and the chief operating officer of the defendant First National Bank of Effingham. Cross-defendant Sgro failed to appear for his scheduled deposition, alleging a death in the family. George Danks, a director of the First National Bank of Eff-ingham, also failed to appear for his deposition. Danks, however, apparently had not been served with a subpoena even though he was not a party to the litigation. At the pre-trial conference on January 5, 1984, the attorney for the Stofers again moved to extend the discovery deadline. The magistrate denied the motion.
On January 20, 1984, the Stofers, in their response to the government’s motion for summary judgment, requested that the court defer ruling until they could take five more depositions. They contended that such testimony would establish that the SBA “acquiesced in what appears to be a conspiracy by Sgro, Nelson and Graham to take the business over, sell the assets and cannibalize the business.” Accompanying the response was an affidavit of Robert Stofer which adopted as true the allegations set forth in the response. The Stof-ers alleged that the government was equitably estopped from asserting a default on the mortgage because of its acquiescence in the actions of Sgro, Nelson and Graham.
The magistrate, in the report and recommendation filed on January 27, 1984, rejected the Stofers’ contention that the government was equitably estopped by the doctrine of laches from asserting a default on the mortgage. The magistrate also concluded that “[t]he Stofers’ conclusory statements that something significant will be disclosed by further discovery will not suffice to defeat summary judgment.” Further, the magistrate noted that there had been no showing by the Stofers as to why they had failed to conduct discovery prior to the original November 1, 1983 deadline, nor had they offered any explanation for their dilatory conduct in not filing their first notice to take depositions until December 19, 1983. The magistrate recommended that the government’s motion for summary judgment be granted.
On March 5, 1984, the Stofers moved to amend their answer and also moved for an evidentiary hearing on the issue of laches and equitable estoppel. The district court denied both motions. On March 7, 1984, the district court adopted the report and recommendation of the magistrate, with exceptions. The district court made the following conclusions of law:
1. The Note, Mortgage, Guaranty, Security Agreement, and Financing Statement are valid obligations enforceable according to the terms thereof.
2. The Small Business Administration has not released, modified, or waived the Guaranty Agreement.
3. The Agreement entered into between Robert H. and Marcia I. Stofer and certain of the defendants does not operate as a release or novation as to the Guaranty.
4. There are no valid existing claims or defenses which would defeat plaintiff’s right of foreclosure.
5. There is no genuine issue of material fact.
6. Plaintiff is entitled to a Judgment and Decree of Foreclosure as a matter of law.
On May 30, 1984, the district court amended the order to certify it as a final judgment under 54(b). On appeal, the Stof-ers argue that (1) there were genuine issues of material fact regarding equitable estoppel which made summary judgment improper, and (2) under Fed.R.Civ.P. 56(f), the trial court erred in denying them the opportunity to reopen discovery.
In Dreher v. Sielaff, 636 F.2d 1141, 1143, n. 4 (7th Cir.1980), the court reviewed the purpose and limitations of summary judgment:
It is well accepted that the purpose of summary judgment is to prevent an unnecessary trial where, on the basis of the pleadings and supporting documents, there remains no material issue of fact to be tried. Kirk v. Home Indemnity Co., 431 F.2d 554, 559 (7th Cir.1970). Summary judgment is appropriate only if it appears that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir.1976); Fed.R.Civ.P. 56(c). The burden is upon the moving party to show that there is no issue of material fact in dispute, Rose v. Bridgeport Brass Co., 487 F.2d 804, 808 (7th Cir.1973)....
The record in this case indisputably establishes the facts that the SBA made a loan, personally guaranteed by the Stofers, to Bob Stofer Oldsmobile-Cadillac Inc.; the Stofers entered into an agreement to sell their interest in the auto dealership to Sgro, Nelson and Graham, and the agreement included a hold harmless provision indemnifying the Stofers from the debt to the SBA; the SBA was not a party to the agreement nor did the SBA release the Stofers from the guarantee; and, finally, that the Stofers defaulted on the loan. The Stofers argue that the trial court had before it sufficient allegations of facts to support the defenses of equitable estoppel and laches, and the government failed to meet its burden of showing that there was no issue of material fact in dispute. The Stofers submit that the pleadings, motions and affidavits before the court alleged that the SBA had full knowledge of the agreement between the Stofers and Nelson, Sgro and Graham, and the SBA allowed the buyers to deplete the mortgaged assets of the dealership without making any payments to the SBA. During this ten-month period, the SBA made no demand on the Stofers for payments on the loan and mortgage. The Stofers contend that the conduct of the SBA’s representatives amounted to a false representation that led them to believe that the SBA would not enforce its rights to a foreclosure action and personal deficiency decree against them. Further, the Stofers claim that they reasonably and detrimentally relied on the words and conduct of the SBA, making no further loan payments and not concerning themselves with whether Nelson, Graham or Sgro were making the payments. The Stofers allege that the SBA was part of a conspiracy with the buyers to “cannibalize” the auto dealership and then have the SBA foreclose and seek a personal deficiency decree. Because the government produced no evidence to contradict the alleged facts of the affirmative defense, the Stofers submit, summary judgment was improperly granted.
The affirmative defense of equitable estoppel is not applicable against the government in the same manner as against a private party. In Portmann v. United States, 674 F.2d 1155, 1167 (7th Cir.1982), this court adopted the standard for estoppel against the government set forth by the Ninth Circuit in TRW, Inc. v. Federal Trade Commission, 647 F.2d 942 (9th Cir.1981), as the minimum showing that a plaintiff is required to make. In Pratte v. NLRB, 683 F.2d 1038, 1041 (7th Cir.1982), the court summarized the elements of a claim of estoppel against the government:
Estoppel will be applicable if the Governmental actions amount to “affirmative misconduct” and if four other requirements are met:
First, the party to be estopped must know the facts. Second, this party must intend that his conduct shall be acted upon, or must so act that the party asserting estoppel has a right to believe it is so intended. Third, the party asserting estoppel must have been ignorant of the facts. Finally, the party asserting estoppel must rely reasonably on the other’s conduct to his substantial injury.
The district court in the instant case, after recognizing that estoppel may apply to the government in certain limited situations, found that summary judgment in favor of the United States was appropriate because the
Stofers have failed to produce any evidence in favor of their estoppel allegations beyond the affidavit of defendant Robert Stofer. This affidavit adopts as true the eonclusory allegations set forth in defendants response to plaintiff’s Motion for Summary Judgment. No other evidence has been presented and the Court is not inclined to deny a Motion for Summary Judgment on the contingency that defendants may be able to prove these facts.
Applying the analysis set forth in Pratte, we agree that the Stofers have produced insufficient evidence to establish any issue of material fact as to the applicability of equitable estoppel. Even assuming that the SBA knew the alleged facts and intended that its conduct would be acted upon, the Stofers have failed to allege any conduct of the SBA that they reasonably relied upon to their substantial injury. In response to the government’s interrogatories, the Stofers responded that they could not identify any oral communication made by or on behalf of the SBA on which they had relied. Further, they responded that the only written documents which they intended to enter into evidence were the July 8, 1982 contracts. Although they conditioned both answers upon the fact that discovery was incomplete, the fact remains that they have not produced any evidence of affirmative misconduct on the part of the SBA upon which they relied. Indeed, in their January 20, 1984 response to the government’s motion for summary judgment, the Stofers stated that the SBA had “acquiesced in what appears to be a conspiracy by Sgro, Nelson and Graham to take the business over, sell the assets, and cannibalize the business____” (emphasis added). Thus, because the Stofers failed to satisfactorily establish the prerequisites of equitable estoppel, there were no genuine issues of material fact to preclude the granting of summary judgment.
Next, the Stofers make the argument that under Fed.R.Civ.P. 56(f), the district court abused its discretion in refusing to grant a continuance so that more depositions could be taken. Fed.R.Civ.P. 56(f) provides:
Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
The Stofers submit that Rule 56(f) is applicable here because they were prevented by the “stonewalling tactics” of Sgro and Danks from taking their depositions. Further, they assert that Rule 56(f) is particularly applicable because the adverse parties had exclusive knowledge of many of the alleged material facts. The Stofers argue that the SBA’s motive, intent and knowledge in allowing the assets of the auto dealership to be depleted are critical issues within the exclusive knowledge of the SBA and accordingly, summary judgment was inappropriate under Rule 56(f).
We reject the Stofers’ contention for two reasons. First, as discussed above, even if the SBA intended that its conduct would be acted upon, the Stofers have made only eonclusory allegations as to any affirmative misconduct on the part of the SBA upon which they reasonably relied to their substantial injury. Thus, even if the SBA’s intent were established, the Stofers have failed to make any concrete allegations as to another essential element of equitable estoppel. Secondly, we agree with the district court that the Stofers’ arguments regarding Rule 56(f) are merit-less. The district court noted, as did the magistrate, that counsel for the Stofers has never offered any explanation for his dilatory efforts in undertaking discovery. Although the original discovery cut-off date was set at the July pre-trial conference for November 1, 1983, counsel for the Stofers did not seek an extension until December 1, 1983, and did not file his first notice to take depositions until December 19, 1983. Under these circumstances, the magistrate refused to grant another continuance on January 5, 1984, when the Stofers’ attorney moved for an extension based on the lack of cooperation of the adverse parties. We agree with the district court that, considering counsel’s dilatory tactics, there is no basis for a finding that the magistrate abused his discretion in refusing to grant further discovery. A party who has been dilatory in discovery may not use Rule 56(f) to gain a continuance where he has made only vague assertions that further discovery would develop genuine issues of material fact. See Abiodun v. Martin Oil Service, Inc., 475 F.2d 142 (7th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 57, 38 L.Ed.2d 86 (1973); see also Waldron v. Cities Service Co., 361 F.2d 671 (2d Cir.1966), aff'd 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 reh’g denied 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1967).
Accordingly, the order of the district court granting summary judgment is AFFIRMED.
. Two assignments were actually executed on July 8, 1982. The first instrument conveyed the Stofers' interest to Sgro and Nelson; Sgro then conveyed his interest to Graham.
. The cross-claims are not the subject of this appeal.
. See Magistrate's Report and Recommendation, January 27, 1984, p. 5 ("George G. Danks is not a party to this litigation and no showing has been made that he was ever subpoenaed for purposes of his deposition.”). We do not address the issue of whether a subpoena is required for a director of a bank which is a party to the litigation.
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:
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songer_respond2_3_3
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant.
OREGON NATURAL RESOURCES COUNCIL, Oregon Guides and Packers Assn., Inc., Rogue Flyfishers, Inc., and Rogue River Guides Assn., Plaintiffs-Appellants, v. John O. MARSH, Jr., in his Official Capacity as Secretary of the United States Department of the Army, and Elvin R. Heiberg, III, in his Official Capacity as Chief of Engineers of the United States Department of the Army, DefendantsAppellees.
No. 86-3670.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 8, 1986.
Decided June 23, 1987.
Neil S. Kagan, Portland, Or., for plaintiffs-appellants.
Dorothy R. Burakreis, Grants Pass, Or., Laura Frossard, Washington, D.C., for defendants-appellees.
James H. Boldt, Grants Pass, Or., for amicus curiae Josephine County.
Before WALLACE, FERGUSON and NORRIS, Circuit Judges.
FERGUSON, Circuit Judge:
Plaintiffs, the Oregon Natural Resources Council, Oregon Guides and Packers Association, Rogue Flyfishers, Inc., and Rogue River Guides Association (“Resources Council”), appeal the denial of an injunction to stop construction by the United States Army Corps of Engineers (“Corps”) of a dam on Elk Creek in Southern Oregon, 628 F.Supp. 1557. The Resources Council contends that the Corps’ final supplemental environmental impact statement (“EIS”) for the dam project fails to comply with the National Environmental Policy Act of 1969, Pub.L. No. 91-190, 83 Stat. 853 (1970) (codified at 42 U.S.C. § 4332) (“NEPA”). We affirm in part and reverse in part.
I.
Elk Creek is a tributary of Oregon’s Rogue River. The Rogue was one of eight rivers in the nation designated as “wild and scenic” in the Wild and Scenic Rivers Act of 1968, Pub.L. No. 90-542, 82 Stat. 906 (1968) (codified at 16 U.S.C. § 1271). The Rogue is known nationally for its white-water rafting and fly-fishing.
In 1962, Congress authorized construction of three dams to control flooding of the Rogue River Basin: Elk Creek Dam, Applegate River Dam, and Lost Creek Dam. The latter two dams are completed. The Elk Creek project consists of a proposed concrete dam 249 feet high and 2,580 feet long. The reservoir behind the proposed dam would collect runoff from most of Elk Creek’s watershed and cover 1,290 acres of land.
In 1971, the Corps filed a final EIS for the Elk Creek Project. In 1975, after studying the projected effects of the dam on turbidity in the Rogue River, the Corps filed a draft supplemental EIS. Construction of the project was suspended until completion of further water quality studies.
In 1980, the Corps filed a revised draft supplemental EIS, which included turbidity and temperature projections based on the Corps’ observations of turbidity caused by the Lost Creek Dam during the year 1977 and the Corps’ computer simulation models. Several state and federal agencies criticized the Corps’ turbidity analysis on the ground that rain runoff levels during 1977 were the lowest on record in the area. The Corps placed these critical comments, and its responses to them, in a separate section, and released the aggregate as its final supplemental EIS.
The Resources Council then brought this action in federal district court for a temporary restraining order, a preliminary injunction, and a permanent injunction to stop construction of Elk Creek Dam. The Resources Council argued that the final supplemental EIS failed in several ways to comport with the requirements of the NEPA and regulatory guidelines of the Council on Environmental Quality. The Resources Council also contended that the Corps was required to prepare a new supplemental EIS because of new information. The district court found the final supplemental EIS adequate and denied the requested relief. The Corps has since awarded contracts for relocation of roads and utilities and for construction of the dam.
II.
The Resources Council contends that the final supplemental EIS violates the NEPA procedural standards and the Council on Environmental Quality guidelines in six respects. The district court held that the environmental impact statement comported with these standards. We review de novo the district court’s determination of whether the EIS is reasonably thorough in discussing the significant aspects of the probable environmental impact of the proposed agency action. Enos v. Marsh, 769 F.2d 1363, 1372 (9th Cir.1985) (applying a “rule of reason”). Purely factual findings are, of course, reviewed for clear error. Id.
We thus endeavor to determine whether the final supplemental EIS satisfies the two purposes of an EIS: (1) to provide decisionmakers with enough information to aid in the substantive decision whether to proceed with the project in light of its environmental consequence; and (2) to provide the public with information and an opportunity to participate in gathering information. Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1056 (9th Cir.1985); California v. Block, 690 F.2d 753, 761 (9th Cir.1982) (the “form, content and preparation [of the EIS] foster both informed decisionmaking and informed public participation”); 40 C.F.R. § 1502.1 (purpose of EIS is to “provide full and fair discussion of significant environmental impacts and ... [to] inform the decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts
First, the Resources Council contends that the final supplemental EIS is deficient because it fails to discuss adequately ways to mitigate adverse environmental impacts of the project. Specifically, the Resources Council claims that the mitigation plan for wildlife contains neither a detailed analysis of mitigation measures nor an explanation of how effective those measures would be. We agree, and reverse for further proceedings on this issue.
An EIS must include a discussion of measures to mitigate adverse environmental impacts of the proposed action. 40 C.F.R. § 1502.16(h). As long as significant measures are undertaken to mitigate the project’s effects, the measures need not compensate completely for adverse environmental impacts. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 987 (9th Cir.1985). The mere listing of mitigation measures, however, is insufficient to satisfy the NEPA requirements. Northwest Indian Cemetery Protective Ass’n v. Peterson, 795 F.2d 688, 697 (9th Cir.1986). Moreover, the EIS must analyze the mitigation measures in detail and explain the effectiveness of the measures. See id.
Here, the mitigation plan for wildlife is not yet fully developed. The mitigation plan, published in 1980, states: “Measures to compensate project-caused loss of wildlife habitat associated with reservoir construction will be developed, based upon the results of the wildlife compensation plan currently underway at Applegate Project and recommendations of Oregon Department of Fish and Wildlife and the U.S. Fish and Wildlife Service.” No mitigation plan had been finalized as of January 1986. We fail to see how mitigation measures can be properly analyzed and their effectiveness explained when they have yet to be developed.
Moreover, the mitigation measures set forth in the final supplemental EIS are inadequate to satisfy the Council on Environmental Quality guidelines. The mitigation plan for wildlife, in its entirety, states:
The compensation [for project-caused loss of wildlife habitat] would be accomplished by managing selected lands to increase the quality of habitat and therefore its carrying capacity for wildlife. The management would consist of a number of habitat manipulative techniques in conjunction with other land uses, landscaping at the project, and development of recreation sites. Specific habitat development measures would be oriented toward development of palatable browse plants, creation of “edge,” maximizing foliage height diversity in certain areas, and creation of snags in the reservoir. This compensation plan will be developed in coordination with Federal and state resource agencies.
This plan lists general measures to mitigate the impact of the project on wildlife. The plan refers to “habitat manipulative techniques,” but fails to specify which techniques will be used. It also fails to identify any of the “specific habitat development measures” that would be utilized to develop palatable browse plants, create “edge,” maximize foliage height diversity, or create snags in the reservoir. More important, there is no analysis of the mitigation measures listed, or any estimation of how effective the measures will be.
The importance of the mitigation plan cannot be overestimated. It is a determinative factor in evaluating the adequacy of an environmental impact statement. Without a complete mitigation plan, the decisionmaker is unable to make an informed judgment as to the environmental impact of the project — one of the main purposes of an environmental impact statement. See Citizens for a Better Henderson, 768 F.2d at 1056.
Because the wildlife mitigation plan here merely lists measures to be used and includes neither an analysis nor an explanation of effectiveness, it is inadequate to satisfy the NEPA or Counsel on Environmental Quality mitigation guidelines. See Northwest Indian Cemetery Protective Ass’n, 795 F.2d at 697.
III.
The Resources Council also contends that the Corps violated the NEPA by failing to prepare a new supplemental EIS taking into account new information acquired since the 1980 EIS. We agree, and remand for further proceedings on this issue as well.
A federal agency has a continuing duty to gather and evaluate new information relevant to the environmental impact of its actions after release of an EIS. Stop H-3 Ass’n v. Dole, 740 F.2d 1442, 1463 (9th Cir.1984), cert. denied, 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985). The agency must supplement the EIS if “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.-9(c)(1)(ii); see Enos, 769 F.2d at 1373. When new information comes to light, the agency must consider it, evaluate it, and make a reasoned determination whether it is of such significance as to require implementation of formal NEPA filing requirements. Stop H-3 Ass’n, 740 F.2d at 1463-64.
We will uphold an agency’s decision not to supplement an environmental impact statement in light of new information if the decision is reasonable. Enos, 769 F.2d at 1373.
Reasonableness depends on the environmental significance of the new information, the probable accuracy of the information, the degree of care with which the agency considered the information and evaluated its impact, and the degree to which the agency supported its decision not to supplement with a statement of explanation or additional data.
Stop H-3 Ass’n, 740 F.2d at 1464 (citation omitted). Applying the Stop H-3 Ass’n standard, we conclude that subsequent to the preparation of the final supplemental EIS, significant new information came to light. We further conclude, based upon the proceedings in the district court, that this information is probably accurate. The Corps failed to exercise the proper degree of care in evaluating the impact of the new information and failed to properly support its decision not to supplement the EIS with an explanation or additional data. Thus, a new supplemental EIS should have been prepared.
Two studies provided significant new information regarding the environmental impact of the project. The Oregon Department of Fish and Wildlife concluded that the project could result in decreased survivability of chinook salmon, higher turbidity, increased disease potential in fish, and decreased prospects for lure- and fly-fishing. The United States Soil Conservation Service found a greater turbidity potential than indicated by the final supplemental EIS. These studies contained the significant new information contemplated by Stop H-3 Ass’n.
The final draft of the Fish and Wildlife Department study, dated August 5, 1985, was based on the impact of Lost Creek Dam on salmon and steelhead populations downstream. Department scientists observed decreased survival of chinook salmon, and speculated that it was a result of increased water temperatures caused by the release of warmer water from the Lost Creek Reservoir. Based on Lost Creek Dam’s impact on survivability, the Department believed that conditions from Elk Creek Dam also would affect negatively chinook salmon survivability. Department scientists concluded that, even though their study was not conclusive, this phenomenon should be studied further before Elk Creek Dam is built.
With regard to higher turbidity, information was based on a study of logging and road-building activity in the Elk Creek watershed since 1980. The logging and road-building has caused soil disturbance. Fish and Wildlife Department scientists believe that this activity will result in higher turbidity than that reported in the final supplemental EIS. Consequently, they suggest additional studies on turbidity potential before the dam is built.
As to disease potential in fish, Fish and Wildlife Department statistics indicate that in 1979, following the construction of Lost Creek Dam, there was a 76% mortality rate in fall chinook salmon populations due to disease and a 32% mortality rate in 1980. Although there has been almost no mortality since 1981, Department scientists concluded there may be a connection between dam closure and the potential for increased disease among fish.
Finally, the Fish and Wildlife Department was concerned about higher flows in the Rogue River that could decrease the effectiveness of lure- and fly-fishing along the river, including the wild and scenic portion. The Department wanted to conduct studies to evaluate this concern, but the Corps reduced the Department’s budget, making further study impossible. The Corps evaluated the Department study and concluded that the new information was not significant enough to warrant a new supplemental EIS.
The Soil Conservation Service soil study also revealed significant new turbidity information tending to corroborate the Department study. The Soil Conservation Service study indicates that the Elk Creek watershed has substantially greater turbidity potential than previously reported in the EIS. Uncontradicted testimony showed that the soil content in the watershed is different than indicated in the final supplemental EIS. The Corps conducted no studies after receiving this new information because it had investigated erosion potential in 1979 and found nothing to substantiate the Department’s concerns over the soil study. Thus, the Corps concluded that no significant new information had been discovered.
The district court found that the Corps’ decision not to release a new supplemental EIS was reasonable. Like the district court, we review the agency’s decision for reasonableness. See Enos, 769 F.2d at 1373. We conclude otherwise. The Department presented new information as a result of its study of Lost Creek Dam’s impact on the river. Although the evidence is not conclusive, it presented a legitimate concern about decreased survivability of fish and the potential for higher turbidity based on information from the two studies that was not available at the time the final supplemental EIS was published. The evidence clearly is environmentally significant under the Stop H-3 Ass’n test.
The information must be more than environmentally significant. It must be “probably accurate” as well. Stop H-3 Ass’n, 740 F.2d at 1464. Based on our review of the experts’ testimony and data, we believe that, at the very least, some of the proffered information is probably accurate. Although the Corps had two independent experts evaluate the Fish and Wildlife Department’s study, and these experts were critical of many of the conclusions reached, the experts also agreed with significant portions of the study. The Corps did not dispute that there was increased logging and road-building activity in the Elk Creek watershed since 1980. The Fish and Wildlife Department is concerned that this activity will result in increased turbidity.
The Corps also did not respond to the study’s conclusions concerning increased fish mortality from epizootic diseases. The information admittedly was not conclusive. Yet, the study raised legitimate concerns regarding the relationship between dam construction and epizootic diseases. The Corps should have considered the information, evaluated its impact and, at the very minimum, supported its decision not to supplement with a statement of explanation or additional data. Id. The Corps does not appear to have exercised the proper degree of care regarding the new information. The Corps also has not supported its decision with a statement of explanation or additional data.
The testimony below also reveals that the information provided by the Soil Conservation Service was never considered by the Corps, even when the Corps issued its Supplemental Information Report in September 1985. In response to questions submitted by the Council of Environmental Quality (CEQ) in 1981, the Corps stated that soils in the Elk Creek Watershed erode more easily than those in the Lost Creek Watershed and therefore produce a higher volume of suspended material per unit of stream runoff and require a longer time to settle out. The Corps concluded that this factor was considered in the modeling effort. Later, in response to commentary (identified as “Letter 14,” attached to the final supplemental EIS) submitted in response to the draft EIS, the Corps stated that morphological factors cannot be incorporated into the WESTEX model but are qualitatively included in the overall analysis of the potential turbidity of the watershed.
However, when presented with evidence showing that the soil content in the Elk Creek watershed was different from that indicated in the final supplemental EIS, the Corps chose not to respond. Table Four of the final supplemental EIS indicates that erosion potentials differ with soil associations. Further, the EIS states that turbidity is “generally caused by soil particles in the water column which are washed downstream in the runoff from the watershed.” Soil type and turbidity may not be directly related, as the Corps contends. Yet, the data reveals that soil type is related to erosion potential which, in turn, affects turbidity. The Corps took this into account earlier in its analysis and should do so again using the new information. Even if this data cannot be included in the WES-TEX model, the Corps should include it qualitatively in its “overall analysis” of turbidity.
These are significant matters, the accuracy of which is not disputed. The Corps did not address adequately these issues. Thus, applying the final two factors of Stop H-3 Ass’n, we conclude that the Corps must prepare a supplemental EIS to address these issues.
IV.
The Resources Council also contends that the Corps was required by the CEQ “worst case” regulation to research further the effects of Elk Creek Damon turbidity in the Rogue River during high, average, and normal-low rainwater runoff years.
The worst case analysis regulation, 40 C.F.R. § 1502.22, requires that when there are gaps in relevant information or scientific uncertainty with regard to significant adverse environmental effects, the agency must make it clear that the information is lacking or that uncertainty exists. If information is lacking that is essential to a reasoned choice and the cost of obtaining it is not exorbitant, the agency must obtain the information and include it in the statement or include a worst case analysis.
The Oregon Department of Fish and Wildlife formally criticized the Corps’ conclusion that Elk Creek Dam would have little effect on temperature and turbidity on the Rogue. The state agency specifically disagreed with the Corps’ finding that Elk Creek would make only a small contribution to total flow in the Rogue River and commented that there may be periods when Elk Creek provides a significant percentage of the total flow of the Rogue. The Corps, in responding to the state agency’s comment (identified as “Letter 6,” attached to the final supplemental EIS), acknowledged that Elk Creek could contribute up to 25% of the flow in the Rogue during high flow periods. Thus, the Corps’ assessment of turbidity due to Elk Creek Dam is subject to uncertainty. This uncertainty is disclosed in the final supplemental EIS.
The district court concluded that the Corps complied with the worst case analysis requirement because the final supplemental EIS included comments that exposed uncertainty, if uncertainty did in fact exist. Yet, exposing uncertainty is not enough. Save Our Ecosystems v. Clark, 747 F.2d 1240, 1244 n. 5 (9th Cir.1984), requires that the Corps include a worst case analysis in the EIS when there are gaps in the information engendering scientific uncertainty which the agency determines to be important and when the necessary information cannot be obtained because of scientific impossibility or because the costs of obtaining it would be exorbitant. See also Oregon Environmental Council v. Kunzman, 817 F.2d 484, 495 (9th Cir.1987). The Corps did not include a worst case analysis and did not conduct any further research with regard to the water flow contribution from Elk Creek. The Corps should pursue one of these alternatives.
Additionally, since the Corps is now required to consider new information brought forth by the two studies, the Corps should take this information into account in its decision concerning a worst case analysis. If uncertainty remains at that time, the Corps should prepare a worst case analysis or conduct further research with regard to the new information.
Y.
The Resources Council further contends that the Corps unreasonably limited the scope of the final supplemental EIS by failing to consider the cumulative effects of all three dam projects, Lost Creek Dam, Applegate Dam, and Elk Creek Dam, the first two of which already have been completed. The Resources Council contends that the Corps should address the cumulative effects of the dams in a single EIS because the three components of the Rogue River Basin Project are connected.
The “cumulative impact” regulation requires the Corps to evaluate “the incremental impact of the action when added to other past, present, and reasonably foreseeable actions.” 40 C.F.R. § 1508.7. Although the CEQ guidelines require that “cumulative actions” be considered together in a single EIS, 40 C.F.R. § 1508.25(a)(2), and “cumulative actions” consist only of “proposed actions,” this does not negate the requirement of 40 C.F.R. § 1508.7 that the Corps consider cumulative impacts of the proposed actions which supplement or aggravate the impacts of past, present, and reasonably foreseeable actions.
The district court correctly ruled that a separate EIS was not required for the entire project. Only proposed actions must be discussed in a separate EIS. 40 C.F.R. § 1508.25(a)(2). The court also concluded that the final supplemental EIS adequately described and analyzed the impacts in terms of the effects of the entire project. The court was convinced that the Corps took a hard look at the cumulative impacts in the EIS.
We disagree with the district court that the Corps took a hard look at the cumulative environmental impacts. Plaintiffs point out two examples of the Corps’ failure to consider the cumulative impacts. First, although the final supplemental EIS conceded that the overall basin project would increase the turbidity of the Rogue River, it concluded that there would be no major adverse effect on fish production from increased turbidity. In reaching this conclusion, however, it considered only the turbidity created by the individual project. Similarly, in response to a comment made by the United States Environmental Protection Agency suggesting that the EIS should discuss the effects of Lost Creek Dam on downstream water quality, the Corps responded that the Elk Creek EIS was not the proper place to discuss the effects of Lost Creek Lake. Insofar as the effects of the Lost Creek Dam were necessary to a complete presentation of the cumulative impact of construction of Elk Creek Dam, we disagree.
The synergistic impact of the project should be taken into account at some stage, and certainly before the last dam is completed. In Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), the Court specifically noted that “an agency could approve one pending project that is fully covered by an impact statement, then take into consideration the environmental effects of that existing project when preparing the comprehensive statement on the cumulative impact of the remaining proposals.” Id. at 415 n. 26, 96 S.Ct. at 2732 n. 26.
While a separate EIS is not required, the Corps should consider the impact of Elk Creek Dam in conjunction with Lost Creek Dam and, if appropriate, Apple-gate River Dam. The Corps is building Elk Creek Dam in an area that already has two dams. It must consider the area as it finds it and take into consideration the cumulative impact of the basin project.
VI.
We affirm the district court’s rulings on the Resources Council’s remaining three challenges. First, the Resources Council contends that the final supplemental EIS gave no meaningful response to comments critical of the Corps’ draft supplemental EIS, because these comments were not integrated into the body of the final supplemental EIS. The Resources Council relies on a CEQ regulation that requires discussion “at appropriate points in the final [EIS of] any responsible opposing view.” 40 C.F.R. § 1502.9(b). The Resources Council argues that the only “appropriate points” in an EIS for discussion of opposing views are in the body.
We first note that section 1502.9(b) does not define “appropriate points.” We must therefore examine that guideline and the Corps’ final supplemental EIS in light of the purposes of an environmental impact statement of providing complete information to the decisionmaker and the public.
We find that an agency may place responsible opposing views in a separate “comments and responses” section when, as here, many of the critical comments prompted revisions in the body, the Corps discussed in the body all of the environmental problems to which the comments were addressed, and the Corps provided thoughtful and well-reasoned responses to most of the critical comments. We therefore hold that the Corps sufficiently complied with the purposes of the NEPA in its treatment of opposing views, even if the most “appropriate points” for addressing those views would be in the body.
Second, the Resources Council contends that the final supplemental EIS is inadequate because it fails to discuss, as required by 40 C.F.R. § 1502.16(c), possible conflicts between the proposed action and other federal policy objectives for the affected area. Specifically, the Resources Council argues that the agency failed to analyze the effect of the dam on the wild and scenic portion of the Rogue River, located fifty-seven miles downstream. An EIS need contain only a reasonably thorough discussion of the significant aspects of the probable environmental consequences of a proposed action. Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir.1974).
In this case, the United States Forest Service commented that the final supplemental EIS should address the effect of the project on the wild and scenic portion of the river. The Corps responded that, based on its conclusion that the impact on the immediate downstream portion of the river would be insignificant, the impact on the wild and scenic portion fifty-seven miles downstream also would be insignificant. The agency assumed that the reservoirs’ impacts diminish with distance.
Applying this court’s “rule of reason,” see Enos, 769 F.2d at 1372, the agency logically concluded that the impact from the project on the wild and scenic portion of the river would be insignificant. Assuming the agency reaches the same conclusion concerning the immediate downstream portion of the river after it takes into consideration the new information, its decision concerning the wild and scenic portion of the river will stand.
Third, the Resources Council contends that the final supplemental EIS is defective because the Corps placed a cost-benefit analysis of the Elk Creek Project using a 2>lk% discount rate in the body, but relegated an analysis based on a more realistic 7½% rate to an appendix. The Resources Council argues that the placement of these analyses misled the decisionmaker as to the economic value of the project.
An EIS is not required to contain a formal, mathematically expressed cost-benefit analysis. California v. Block, 690 F.2d at 764. Nevertheless, if such an analysis is included, it should not be misleading. See Johnston v. Davis, 698 F.2d 1088, 1094 (10th Cir.1983).
We find that the Corps’ use of a 3V4% discount rate or its placement of the 7V2% cost-benefit analysis in an appendix was not misleading. The Water Resources Development Act of 1974, Pub.L. No. 93-251, § 80, 88 Stat. 34 (1974) (codified at 42 U.S.C. § 1962d-17(b)), required use of the 31/4% discount rate. Johnston, 698 F.2d at 1092-95. The Corps’ inclusion of the analysis based on the more realistic comported with CEQ guidelines. See 40 C.F.R. § 1502.23 (cost-benefit analysis “shall be incorporated by reference or appended to the statement”). Moreover, although the purposes of an EIS might have been better served if the 3V4% analysis in the body had made reference to the 7 ¥2% analysis in the appendix, the inclusion of the latter analysis sufficiently cured whatever misleading effects resulted from use of the 3V4 percent rate. Cf Enos, 769 F.2d at 1375 n. 14.
VII.
We conclude that the Corps’ mitigation report is inadequate, and that the Corps should file a new supplemental EIS because of new information obtained. The Corps also must prepare a worst case analysis or conduct further research with regard to the waterflow contribution from Elk Creek. The Corps also should conduct a worst case analysis based on the new information submitted in the two studies, if necessary. Finally, although the Corps need not prepare a separate statement addressing the cumulative impact of the dams, it should supplement the statement and address the cumulative impact of Lost Creek and Elk Creek Dams and, if appropriate, Applegate River Dam. We therefore remand to the district court for entry of appropriate injunctive relief in accordance with this opinion. Attorneys fees and costs are awarded to plaintiffs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
. "Turbidity" is defined in the glossary to the final supplemental EIS as "an expression of the optical property of water which causes light to be scattered and absorbed rather than transmitted through in straight lines. Turbidity is caused by the presence of suspended matter." Simply stated, turbidity is murkiness due to stirred-up sediment.
. The plaintiffs are several nonprofit organizations representing their members who assert injury by the dam’s construction. The plaintiffs therefore have standing under the rule in Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972).
. We note, however, that the factors set forth in Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1464 (9th Cir.1984), cert. denied. 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859 (1985), to determine reasonableness are neither mandatory nor exclusive. Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 (9th Cir.1980), upon which Stop H-3 Ass’n relies, specifically states that ‘jVjeasonableness depends on such factors as____" Id. at 1024 (emphasis added).
. The district court noted that the Corps is still reviewing the concerns expressed in the final Department study. Because the Corps has yet to complete its review of the new information, it is too early to conclude that the new information is not significant.
. An epizootic disease is a disease that affects many members of a population at the same time. See Webster’s Third New International Dictionary 766 (1976).
. The WESTEX model is a mathematical model developed by the Corps’ Waterways Experiment Station in Vicksburg, Mississippi, and the University of Texas. The Corps used this model to analyze potential turbidity problems from Elk Creek Dam.
. We note that the United States Fish and Wildlife Service also recommended a new supplemental EIS because there may no longer be a need for the water storage assumed necessary in the final supplemental EIS.
. We reject the argument of the Corps that section 1502.22 is inapplicable due to its rescission on May 27, 1986. The worst case regulation is a codification of prior NEPA case law. See Save Our Ecosystems v. Clark, 747 F.2d 1240, 1244 (9th Cir.1984). Thus, the rules embodied in the regulation remain in effect even though the regulation was rescinded.
. The parties disagree as to the appropriate standard of review for this issue. The Resources Council contends that the decision to limit the scope of an EIS is akin to a decision not to prepare a statement at all. Therefore, under Foundation for N. Am. Wild Sheep v. United States Dep’t of Agric., 681 F.2d 1172, 1177 (9th Cir.1982), we would review the decision to determine its reasonableness. Appellees contend that this court should review the decision to determine whether it is arbitrary and capricious. Neither contention is correct. As stated previously, this court reviews the district court’s conclusion to determine whether it is based on an erroneous legal standard or on clearly erroneous findings of fact. See Northwest Indian Cemetery Protective Ass’n, 795 F.2d at 696.
. As originally drafted, section 1502.9(b) read: "In the final statement the agency shall discuss at appropriate points in the text the existence of any responsible opposing view____” 43 Fed. Reg. 25,237 (1978). Because the deletion of the words "in the text” was not accompanied by an explanation, see 43 Fed.Reg. 55,995 (1978), it is unclear whether the CEQ intended the change to affect the meaning of "appropriate points.”
. Moreover, to the extent that the critical responses of the state and federal agencies were merely "substantive comments," rather than "responsible opposing views," the Corps was not required to discuss the comments in the text. See 40 C.F.R. § 1503.4(b).
. The Resources Council contends that the agency’s assumption violates 40 C.F.R. § 1502.-24, which requires agencies to identify any methodologies used and to make explicit reference by footnote to the scientific and other sources relied on for conclusions in the statement. We disagree. The regulation is satisfied here because the Corps identified the methodologies used and sources relied on for its conclusions concerning the immediate downstream portion of the stream. This was sufficient to support its decision concerning the wild and scenic portion of the river.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant?
A. Department of Agriculture
B. Department of Commerce
C. Department of Defense (includes War Department and Navy Department)
D. Department of Education
E. Department of Energy
F. Department of Health, Education and Welfare
G. Department of Health & Human Services
H. Department of Housing and Urban Development
I. Department of Interior
J. Department of Justice (does not include FBI or parole boards; does include US Attorneys)
K. Department of Labor (except OSHA)
L. Post Office Department
M. Department of State
N. Department of Transportation, National Transportation Safety Board
O. Department of the Treasury (except IRS)
P. Department of Veterans Affairs
Answer:
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sc_partywinning
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the 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.
ILLINOIS v. PERKINS
No. 88-1972.
Argued February 20, 1990
Decided June 4, 1990
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, O’Connor, and Scalia, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, post, p. 300. Marshall, J., filed a dissenting opinion, post, p. 303.
Marcia L. Friedl, Assistant Attorney General of Illinois, argued the cause for petitioner. With her on the briefs were Neil F. Hartigan, Attorney General, Robert J. Ruiz, Solicitor General, and Terence M. Madsen and Jack Donatelli, Assistant Attorneys General.
Paul J. Larkin, Jr., argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Dennis, and Deputy Solicitor General Bryson.
Dan W. Evers, by appointment of the Court, 493 U. S. 930, argued the cause for respondent. With him on the brief was Daniel M. Kirwan.
Briefs of amici curiae urging reversal were filed for Americans for Effective Law Enforcement, Inc., et al. by Gregory U. Evans, Daniel B. Hales, George D. Webster, Jack E. Yelverton, Fred E. Inbau, Wayne W. Schmidt, Bernard J. Farber, and James P. Manak; and for the Lincoln Legal Foundation et al. by Joseph A. Morris, Donald D. Bemardi, Fred L. Foreman, Daniel M. Harrod, and Jack E. Yelverton.
John A. Powell, William B. Rubenstein, and Harvey Grossman filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Justice Kennedy
delivered the opinion of the Court.
An undercover government agent was placed in the cell of respondent Perkins, who was incarcerated on charges unrelated to the subject of the agent’s investigation. Respondent made statements that implicated him in the crime that the agent sought to solve. Respondent claims that the statements should be inadmissible because he had not been given Miranda warnings by the agent. We hold that the statements are admissible. Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.
I
In November 1984, Richard Stephenson was murdered in a suburb of East St. Louis, Illinois. The murder remained unsolved until March 1986, when one Donald Charlton told police that he had learned about a homicide from a fellow inmate at the Graham Correctional Facility, where Charlton had been serving a sentence for burglary. The fellow inmate was Lloyd Perkins, who is the respondent here. Charlton told police that, while at Graham, he had befriended respondent, who told him in detail about a murder that respondent had committed in East St. Louis. On hearing Charlton’s account, the police recognized details of the Stephenson murder that were not well known, and so they treated Charlton’s story as a credible one.
By the time the police heard Charlton’s account, respondent had been released from Graham, but police traced him to a jail in Montgomery County, Illinois, where he was being held pending trial on a charge of aggravated battery, unrelated to the Stephenson murder. The police wanted to investigate further respondent’s connection to the Stephenson murder, but feared that the use of an eavesdropping device would prove impracticable and unsafe. They decided instead to place an undercover agent in the cellblock with respondent and Charlton. The plan was for Charlton and undercover agent John Parisi to pose as escapees from a work release program who had been arrested in the course of a burglary. Parisi and Charlton were instructed to engage respondent in casual conversation and report anything he said about the Stephenson murder.
Parisi, using the alias “Vito Bianco,” and Charlton, both clothed in jail garb, were placed in the cellblock with respondent at the Montgomery County jail. The cellblock consisted of 12 separate cells that opened onto a common room. Respondent greeted Charlton who, after a brief conversation with respondent, introduced Parisi by his alias. Parisi told respondent that he “wasn’t going to do any more time” and suggested that the three of them escape. Respondent replied that the Montgomery County jail was “rinky-dink” and that they could “break out.” The trio met in respondent’s cell later that evening, after the other inmates were asleep, to refine their plan. Respondent said that his girlfriend could smuggle in a pistol. Charlton said: “Hey, Pm not a murderer, Pm a burglar. That’s your guys’ profession.” After telling Charlton that he would be responsible for any murder that occurred, Parisi asked respondent if he had ever “done” anybody. Respondent said that he had and proceeded to describe at length the events of the Stephenson murder. Parisi and respondent then engaged in some casual conversation before respondent went to sleep. Parisi did not give respondent Miranda warnings before the conversations.
Respondent was charged with the Stephenson murder. Before trial, he moved to suppress the statements made to Parisi in the jail. The trial court granted the motion to suppress, and the State appealed. The Appellate Court of Illinois affirmed, 176 Ill. App. 3d 443, 531 N. E. 2d 141 (1988), holding that Miranda v. Arizona, 384 U. S. 436 (1966), prohibits all undercover contacts with incarcerated suspects that are reasonably likely to elicit an incriminating response.
We granted certiorari, 493 U. S. 808 (1989), to decide whether an undercover law enforcement officer must give Miranda warnings to an incarcerated suspect before asking him questions that may elicit an incriminating response. We now reverse.
II
In Miranda v. Arizona, supra, the Court held that the Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during “custodial interrogation” without a prior warning. Custodial interrogation means “questioning initiated by law enforcement officers after a person has been taken into custody . . . .” Id., at 444. The warning mandated by Miranda was meant to preserve the privilege during “incommunicado interrogation of individuals in a police-dominated atmosphere.” Id., at 445. That atmosphere is said to generate “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id., at 467. “Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.” Berkemer v. McCarty, 468 U. S. 420, 437 (1984).
Conversations between suspects and undercover agents do not implicate the concerns underlying Miranda. The essential ingredients of a “police-dominated atmosphere” and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect. Rhode Island v. Innis, 446 U. S. 291, 301 (1980); Berkemer v. McCarty, supra, at 442. When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking. Miranda, 384 U. S., at 449 (“[T]he ‘principal psychological factor contributing to a successful interrogation is privacy—being alone with the person under interrogation’”); id., at 445. There is no empirical basis for the assumption that a suspect speaking to those whom he assumes are not officers will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.
It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation. We reject the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent. Questioning by captors, who appear to control the suspect’s fate, may create mutually reinforcing pressures that the Court has assumed will weaken the suspect’s will, but where a suspect does not know that he is conversing with a government agent, these pressures do not exist. The state court here mistakenly assumed that because the suspect was in custody, no undercover questioning could take place. When the suspect has no reason to think that the listeners have official power over him, it should not be assumed that his words are motivated by the reaction he expects from his listeners. “[W]hen the agent carries neither badge nor gun and wears not ‘police blue,’ but the same prison gray” as the suspect, there is no “interplay between police interrogation and police custody.” Kamisar, Brewer v. Williams, Massiah and Miranda: What is “Interrogation”? When Does it Matter?, 67 Geo. L. J. 1, 67, 63 (1978).
Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner. As we recognized in Miranda: “Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” 384 U. S., at 478. Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns. Cf. Oregon v. Mathiason, 429 U. S. 492, 495-496 (1977) (per curiam); Moran v. Burbine, 475 U. S. 412 (1986) (where police fail to inform suspect of attorney’s efforts to reach him, neither Miranda nor the Fifth Amendment requires suppression of prearraignment confession after voluntary waiver).
Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cellmates. This case is illustrative. Respondent had no reason to feel that undercover agent Parisi had any legal authority to force him to answer questions or that Parisi could affect respondent’s future treatment. Respondent viewed the cellmate-agent as an equal and showed no hint of being intimidated by the atmosphere of the jail. In recounting the details of the Stephenson murder, respondent was motivated solely by the desire to impress his fellow inmates. He spoke at his own peril.
The tactic employed here to elicit a voluntary confession from a suspect does not violate the Self-Incrimination Clause. We held in Hoffa v. United States, 385 U. S. 293 (1966), that placing an undercover agent near a suspect in order to gather incriminating information was permissible under the Fifth Amendment. In Hoffa, while petitioner Hoffa was on trial, he met often with one Partin, who, unbeknownst to Hoffa, was cooperating with law enforcement officials. Partin reported to officials that Hoffa had divulged his attempts to bribe jury members. We approved using Hoffa’s statements at his subsequent trial for jury tampering, on the rationale that “no claim ha[d] been or could [have been] made that [Hoffa’s] incriminating statements were the product of any sort of coercion, legal or factual.” Id., at 304. In addition, we found that the fact that Partin had fooled Hoffa into thinking that Partin was a sympathetic colleague did not affect the volun-tariness of the statements. Ibid. Cf. Oregon v. Mathiason, supra, at 495-496 (officer’s falsely telling suspect that suspect’s fingerprints had been found at crime scene did not render interview “custodial” under Miranda); Frazier v. Cupp, 394 U. S. 731, 739 (1969); Procunier v. Atchley, 400 U. S. 446, 453-454 (1971). The only difference between this case and Hoffa is that the suspect here was incarcerated, but detention, whether or not for the crime in question, does not warrant a presumption that the use of an undercover agent to speak with an incarcerated suspect makes any confession thus obtained involuntary.
Our decision in Mathis v. United States, 391 U. S. 1 (1968), is distinguishable. In Mathis, an inmate in a state prison was interviewed by an Internal Revenue Service agent about possible tax violations. No Miranda warning was given before questioning. The Court held that the suspect’s incriminating statements were not admissible at his subsequent trial on tax fraud charges. The suspect in Mathis was aware that the agent was a Government official, investigating the possibility of noncompliance with the tax laws. The case before us now is different. Where the suspect does not know that he is speaking to a government agent there is no reason to assume the possibility that the suspect might feel coerced. (The bare fact of custody may not in every instance require a warning even when the suspect is aware that he is speaking to an official, but we do not have occasion to explore that issue here.)
This Court’s Sixth Amendment decisions in Massiah v. United States, 377 U. S. 201 (1964), United States v. Henry, 447 U. S. 264 (1980), and Maine v. Moulton, 474 U. S. 159 (1985), also do not avail respondent. We held in those cases that the government may not use an undercover agent to circumvent the Sixth Amendment right to counsel once a suspect has been charged with the crime. After charges have been filed, the Sixth Amendment prevents the government from interfering with the accused’s right to counsel. Moulton, supra, at 176. In the instant case no charges had been filed on the subject of the interrogation, and our Sixth Amendment precedents are not applicable.
Respondent can seek no help from his argument that a bright-line rule for the application of Miranda is desirable. Law enforcement officers will have little difficulty putting into practice our holding that undercover agents need not
give Miranda warnings to incarcerated suspects. The use of undercover agents is a recognized law enforcement technique, often employed in the prison context to detect violence against correctional officials or inmates, as well as for the purposes served here. The interests protected by Miranda are not implicated in these cases, and the warnings are not required to safeguard the constitutional rights of inmates who make voluntary statements to undercover agents.
We hold that an undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response. The statements at issue in this case were voluntary, and there is no federal obstacle to their admissibility at trial. We now reverse and remand for proceedings not inconsistent with our opinion.
It is so ordered.
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:
|
sc_jurisdiction
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
KIMBERLIN v. QUINLAN et al.
No. 93-2068.
Argued April 26, 1995 —
Decided June 12, 1995
Howard T. Rosenblatt argued the cause for petitioner. With him on the briefs were Jerrold J. Ganzfried and Ellen S. Winter.
Deputy Solicitor General Bender argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, and Cornelia T. L. Pillard.
Michael L. Martinez argued the cause for respondents. With him on the brief were Steven D. Gordon and William J. Dempster
Anthony C. Epstein, Steven R. Shapiro, Arthur B. Spitzer, Leslie A Brueekner, and Marc D. Stern filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.
A brief of amici curiae urging affirmance was filed for the State of Hawaii et al. by Margery S. Bronster, Attorney General of Hawaii, and Girard D. Lau, Deputy Attorney General, Winston Bryant, Attorney General of Arkansas, Daniel E. Lungren, Attorney General of California, M. Jane Brady, Attorney General of Delaware, Alan G. Lance, Attorney General of Idaho, Pamela Carter, Attorney General of Indiana, Carla J. Stovall, Attorney General of Kansas, Chris Gorman, Attorney General of Kentucky, Hubert H. Humphrey III, Attorney General of Minnesota, Mike Moore, Attorney General of Mississippi, Jeremiah W. Nixon, Attorney General of Missouri, Joseph P. Mazurek, Attorney General of Montana, Jeffrey R. Howard, Attorney General of New Hampshire, Victoria A Graffeo, Attorney General of New York, Betty D. Montgomery, Attorney General of Ohio, Drew Edmondson, Attorney General of Oklahoma, Jeffrey B. Pine, Attorney General of Rhode Island, Mark Barnett, Attorney General of South Dakota, Jan Graham, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, James S. Gilmore III, Attorney General of Virginia, James E. Doyle, Attorney General of Wisconsin, Richard Weil, Attorney General of the Commonwealth of the Northern Mariana Islands, and Alva A. Swan, Acting Attorney General of the Virgin Islands.
Per Curiam.
The judgment is vacated, and the case is remanded to the United States Court of Appeals for the District of Columbia Circuit for further consideration in light of Johnson v. Jones, ante, p. 304.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
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 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_trialpro
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
BALTIMORE & O. R. CO. v. TINDALL.
No. 4439.
Circuit Court of Appeals, Seventh Circuit.
Feb. 9, 1931.
H. W. Mountz, of Garrett, Ind., and Charles D. Clark and Henry D. Sheean, both of Chicago, 111., for appellant.
Edward B. Hensleo and R. C. Parrish, both of Fort Wayne, Ind., for appellee.
Before ALSCHULER," EVANS, and , SPARKS, Circuit Judges.
EVANS, Circuit Judge.
Accepting the testimony most favorable to appellee, as we are required to do when reviewing the refusal of the trial court to direct a verdict, the following facts are disclosed :
Tindall was a front brakeman working on one of appellant’s freight trains engaged in interstate commerce, and he had been so employed for some time. As such employee, it was his duty to ride in the engine cab between stations. A seat was provided for him, the construction of which is shown by the drawing:
On October 29, 1927, while appellee was so riding between two stations, the seat gave way and he fell or slid to the floor of the cab. Appellee testified that the seat was defective in that its regular support (e) was gone and in its place was a wooden stick extending from under the seat to a piece of coal on the floor. When he fell, Tindall had his arm out the window. He stated that he fell “with his left hip down under the side of the seat and his left arm out of the window.”
Conceding without deciding that the injury happened in the manner charged, the controversy on this appeal is limited to an ascertainment of whether appellee’s alleged injuries resulted from this accident. Appellant disputed (a) appellee’s asserted physical condition- — that of total and permanent physical disability — and contended further (b) if permanent disability existed, it could not be traced to the fall from the seat. Ap-pellee argued that on both issues a jury question was presented by the evidence.
Respecting the first issue (a) it hardly seems necessary to set forth the evidence. We agree with appellee’s counsel that there was evidence to support a finding that after the accident appellee was at times wholly disabled from doing certain kinds of work.
Tbe real controversy, therefore, was over issue (b). Was there evidentiary support for a verdict finding that appellant’s negligence was tbe proximate cause of tbe injury for which damages were awarded?
The jury must have found that appellee was seriously and permanently injured, for it fixed his damages at $12,500. It must also have found that such serious and permanent injury was the result of the accident. This last statement is made because it is inconceivable that an award of $12,500 would have been made except on the theory that serious and permanent disability resulted from appellee’s slipping to the floor of the cab when the seat gave way.
The rule governing the quantum of proof necessary to warrant submission to the jury applies to the issue of proximate cause •as well as to that of negligence. New York Central R. R. v. Ambrose, 280 U. S. 486, 50 S. Ct. 198, 74 L. Ed. 562.
A most thorough examination of the testimony has resulted in the conclusion that .the jury was not justified in finding that such injuries were traceable to the fall. Such a verdict, we think, rests solely upon speculation.
Supporting this conclusion is the uncon-tradicted testimony that appellee never complained of such injuries to any one from the date of the accident, October 29, 1927, until October 19, 1929, when this action was begun. He made no mention either of the seat giving way or of his fall or of any injury resulting therefrom, to the fireman, to the brakeman, or to the conductor, on the day of the accident or at any time thereafter. He performed his duties as brakeman during the remainder of the trip. He “went out on his run” the next day and again performed his duties as a brakeman and he continued to do so for about sixty days. When, sixty days after the accident, he consulted his local physician, he made no mention of this accident as a possible explanation of the rheumatic pains from which he then suffered. In July, 1928, he consulted another physician, but made no mention of this accident. About four months later he again consulted this physician and was taken to a hospital, yet he never mentioned the accident. This physician stated that he examined him the second time on November 4,1928, and he testified as follows:
“My diagnosis at that time was that he was suffering with intense pain in the hip and muscles associated with the hip and a diagnosis was made of periostitis, which is an inflammation of the periosteum, the covering of the bone. On February 2nd, 1929, we took another ex-ray picture and another was taken on April 2nd, 1930 and another on April 28th, 1930. At the time he entered the hospital he was put to bed and given medicine to relieve the pain. We used the therapy red-ray lamp that generates heat producing rays. This treatment was continued while he was in the hospital, about twelve weeks, that was from November 4th, 1928 until January 29th, 1929. After that I had him purchase one of the red-ray lamps and take his treatment at home.”
These X-ray pictures were offered in evidence as were X-ray pictures taken by appellant’s witnesses at the time of the trial. Their examination failed to enlighten the court. ■
Several physicians testified for appellant, and their statement that appellee’s leg, left hip joint, and bones of the joint and hip were at the date of the trial (May 12, 1930) '.in a normal state, is not seriously disputed. These witnesses also stated that they measured the length of each limb, the diameter of the thighs and made other measurements, and found both legs exactly equal. Their statement as to these measurements is uncontradicted. They agreed that “aside from the subjective symptoms, their examination disclosed no evidence of injury.” They also stated without contradiction that an absorption of the left head of the humerous, covering a period of two years, would result in some atrophy of the muscles around the hip joint. They likewise testified that rheumatic conditions around the hip joint “may arise from infections in a remote part of the body, in the teeth or bladder or other places.”
In reaching our conclusion we have not overlooked the testimony of appellee’s physician given in response to a hypothetical question, that appellee’s condition at the time of the trial, May 12, 1930, was caused by the injuries received on October 29, 1927. The hypothetical question, upon which the physician based his answer, presupposed the absence of infections or other causes of rheumatic or sciatic nerve inflammations.
While it seems to be the common practice in the trial of personal injury eases to submit to an expert witness a hypothetical question based upon one side’s theory of the case, the answer to such question is not as satisfactory or as persuasive as it would be if a fairer or more complete statement of the actual facts appeared in- the question. Accepting appellee’s story of his disability, the court and jury were interested in its cause. Was it of traumatic or rheumatie origin? Was it caused by an injury or by an infection? The expert’s opinion to be of value should be in answer to a hypothetical question including the possible causes. ■
There seems to he some merit in the contention that if injury caused the condition there would have been some physical manifestation of it in the limb or the region of the left hip joint.
Further support for our conclusion is to he found in the testimony of the doctor, who acted as medical examiner of the insurance benefit department of the Baltimore & Ohio Railroad Company. Appellee had been on the insurance disability list of the relief department since December 21, 1927. This insurance department covered both sick and injury benefits. Sick benefits began to run from a date different from that of disability benefits paid because of disability caused by accidents. In applying for benefits because of his disability, appellee never made claim that such disability was due to an injury. Had he done so, his benefits would have been from a slightly earlier date.
We conclude that the evidence tending to show the damages for which appellee recovered was too remote and speculative to justify its submission to the jury. It is not necessary to pass on appellant’s other contention that the evidence is insufficient to sustain a finding that the support for the seat was defective.
The judgment is reversed, with direction to grant a new trial.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_respond1_1_2
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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".
VOLKSWAGEN INTERAMERICANA, S.A., Defendant, Appellant, v. Henry ROHLSEN, Plaintiff, Appellee.
No. 6634.
United States Court of Appeals First Circuit.
May 17, 1966.
Raymond J. Falls, Jr., New York City, with whom Stephen A. Greene, Cahill, Gordon, Reindel & Ohl, New York City, McConnell, Valdes & Kelley, San Juan, P. R., and Gonzalez, Gonzalez-Oliver & Novak, Santurce, P. R., were on brief, for appellant.
John D. Marsh, Christiansted, St. Croix, V. I., with whom Young, Isherwood & Marsh, Christiansted, St. Croix, V. I., and Dubon & Dubon, Santurce, P. R., were on brief, for appellee.
Before ALDRICH, Chief Judge, MARIS and COFFIN, Circuit Judges.
By designation.
. Although Congress could provide for service on an American corporation anywhere in the United States, Mississippi Publishing Corp. v. Murphree, 1946, 326 U.S. 438, 442, 66 S.Ct. 242, 90 L.Ed. 185, it is likely that federal assertion of jurisdiction over corporations organized under the laws of foreign countries is circumscribed by the due process clause of the fifth amendment. Cf. United States v. Scophony Corp. of America, 1948, 333 U.S. 795, 818, 68 S.Ct. 855, 92 L.Ed. 1091; United States v. Imperial Chemical Industries, Ltd., S.D.N.Y., 1951, 100 F.Supp. 504, 511. In any event, in federal question cases, the courts have tested the amenability of any foreign corporation to suit by reference to the standards developed under that clause. Lone Star Package Car Co., Inc. v. Baltimore & O. R. R., 5 Cir., 1954, 212 F.2d 147; Ostow & Jacobs, Inc. v. Morgan-Jones, Inc., S.D.N.Y.1959, 178 F.Supp. 150.
ALDRICH, Chief Judge.
This is an action brought under the so-called Automobile Dealers’ Day in Court Act, 15 U.S.C. §§ 1221-1225, hereinafter Dealers’ Act, by one Rohlsen, a former Volkswagen dealer in St. Croix, Virgin Islands, against the regional Volkswagen distributor, Volkswagen In-teramericana, S.A., a Mexican corporation. The suit was instituted in the United States District Court for the District of Puerto Rico. Process was served on the manager of Volkswagen de Puerto Rico, hereinafter VWPR, a local dealer franchised by defendant, as defendant’s alleged agent. The jury returned a verdict for the plaintiff in the amount of $300,000. Defendant’s appeal raises, at the outset, questions of jurisdiction.
Little time need be spent over defendant’s reliance upon a provision of the franchise agreement restricting actions to the courts of Mexico. We need not consider whether this provision is sufficiently reasonable that it should be respected in an .ordinary suit arising out of the contract. See Wm. H. Muller & Co. v. Swedish American Line Ltd., 2 Cir., 1955, 224 F.2d 806, 56 A.L.R.2d 295, cert. den. 350 U.S. 903, 76 S.Ct. 182, 100 L.Ed. 793. The Dealers’ Act contains its own venue provisions, which are very broad, and are designed to assure the dealer as accessible a forum as is reasonably possible. Cf. Snyder v. Eastern Auto Distributors, Inc., 4 Cir., 1966, 357 F.2d 552, cert. den. June 13, 1966, 86 S.Ct. 1889. The very purpose of the act is to give the dealer certain rights against a manufacturer independent of the terms of the agreement itself. Cf. Barney Motor Sales v. Cal. Sales, Inc., S.D.Cal.1959,178 F.Supp. 172,175. This protection would be of little value if a manufacturer could contractually limit jurisdiction to a forum practically inaccessible to the dealer. The act cannot so easily be thwarted. Cf. Boyd v. Grand Trunk Western R. R., 1949, 338 U.S. 263, 70 S.Ct. 26, 94 L.Ed. 55.
Defendant further alleges that it was not present in Puerto Rico so as to be amenable to suit there, and that it was not properly served with process. If defendant is subject to jurisdiction in Puerto Rico, it is only because of defendant’s relationship with its franchised Puerto Rico Volkswagen dealer, VWPR, and it is to this that we turn.
It was uncontroverted that Krause, Hennings, and Reuss, the president, finance director, and managing director of defendant, were, respectively, the president, vice-president, and a director of VWPR. Hinke, a vice-president and director of VWPR, was one of defendant’s two chief shareholders, the other one being Krause. From this, although the record is confused as to the actual ownership of VWPR, it could reasonably be concluded that defendant exercised-direct control over the Puerto Rico dealership. We do not rest on this alone. Although VWPR’s franchise agreement was not introduced into evidence, the plaintiff’s was. It was a printed form, and, in the absence of contrary evidence, we think it not unreasonable to infer that it was standard, and that VWPR’s agreement subjected it to no less control by defendant. Under the form franchise, defendant reserved the right to control, inter alia, the dealer’s automobile and spare parts inventory, its area of distribution, the number of salesmen and customers’ service personnel in its employ, and even its stationery and business forms. Defendant further reserved the right to inspect, at its will, the dealer’s premises and all of its business records.
The due process clause sets the outer limits on assertion of jurisdiction over a foreign corporation. The basic standard, enunciated in International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, and developed in subsequent decisions, is that the foreign corporation must “have certain minimum contacts with [the forum] * * * such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.' ” Id. at 316, 66 S.Ct. at 158.
When jurisdiction is asserted over a foreign corporation because of its relationship with a local person or corporation, the nature and extent of this relationship, as well as the relevance of the subject-matter of the suit to defendant’s affairs within the state are of significance. Defendant’s dealers were not mere buyers, or outlets for its products, but, as we have indicated, were subject to its detailed supervision and control. Virtually indistinguishable franchises have been held sufficient to subject a foreign manufacturer or distributor to suit in the jurisdiction of its local dealer. Snyder v. Eastern Auto Distributors, Inc., supra; Delray Beach Aviation Corp. v. Mooney Aircraft, Inc., 5 Cir., 1964, 332 F.2d 135, cert. den. 379 U.S. 915, 85 S.Ct. 262, 13 L.Ed.2d 185; Fiat Motor Co. v. Alabama Imported Cars, Inc., 1961, 110 U.S.App.D.C. 252, 292 F.2d 745, cert. den. 368 U.S. 898, 82 S.Ct. 175, 7 L.Ed. 2d 94. Although interlocking ties of corporate control, such as common directors and officers, may not in themselves be sufficient to subject the foreign corporation to local jurisdiction, Cannon Mfg. Co. v. Cudahy Packing Co., 1925, 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634, they are relevant factors, and lend support to jurisdiction based on this contractual reservation of control. Boryk v. deHavilland Aircraft Co., 2 Cir., 1965, 341 F.2d 666; cf. Fooshee v. Interstate Vending Co., D.Kan., 1964, 234 F.Supp. 44.
When, as here, a foreign defendant’s contacts with a forum are substantial, a suit may be maintained though it concern a matter having no connection with the forum. Perkins v. Benguet Consol. Mining Co., 1952, 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485. In the present case, moreover, the suit is not unrelated to Puerto Rico: throughout the period of the franchise, VWPR acted as agent for defendant in relation to its business with plaintiff. Cf. Fiat Motor Co. v. Alabama Imported Cars, Inc., supra.
Defendant could not carry on substantial economic activities within this country and at the same time claim to be absent when distasteful consequences ensued. Defendant was subject to personal jurisdiction in Puerto Rico, and was properly served by service upon VWPR’s managing agent. Fed.R.Civ.P. 4(d) (3) ; Lone Star Package Car Co. v. Baltimore & O.R.R., supra, note 3.
We come next to the question whether defendant is a party who can be sued under the Dealers’ Act. Section 1222 provides only for “suit against any automobile manufacturer.” Section 1221(a) states,
“The term ‘automobile manufacturer’ shall mean any * * * business enterprise engaged in the manufacturing or assembling of [motor vehicles] * * *, including any person, partnership, or corporation which acts for and is under the control of such manufacturer or assembler in connection with the distribution of said automotive vehicles.”
Defendant’s position is that, although by section 1221(a) suit can be brought against a manufacturer for the misconduct of its distributor, the act does not authorize suit against the distributor itself. Defendant further contends that it was not a distributor acting for and under the control of a manufacturer.
We agree with defendant that the Dealers’ Act is aimed at automobile manufacturers, not at distributors, as such, and that the inclusion of certain distributors in section 1221(a) was designed only to prevent a manufacturer from circumventing its responsibilities under the act by transacting business with its dealers through alter egos. We do not conclude from this, however, that when the manufacturer has acted through a distributor over whom it exercises the requisite control, suit cannot be brought against the distributor as well. It is basic agency law that an agent who has injured a third party cannot defend on the ground that he did so at the bidding of another. Indeed, if he so acts, he must do so subject to any special liability or disability that would attach to the principal for whom he is acting. It is entirely consistent with both the purpose and language of the act to hold that “automobile manufacturer” means, inter alia, “automobile distributor,” when the distributor is subject to the manufacturer’s control. Barney Motor Sales v. Cal Sales, Inc., supra.
Defendant’s assertions that this requisite relationship was lacking, and that the court erred in excluding evidence- relating to control, are based upon a misconception of the appropriate standard. Defendant is doubtless correct in suggesting that if the distributor is but an “instrumentality” of the manufacturer, in the special sense that the term is used in corporation law, this is a sufficient basis for bringing the distributor within the act. It is not, however, the only basis. “Acts for and is under the control of * * * ” describes with equal aptness the relation between certain agents and their principals. A manufacturer can exercise the same kind of control through contractual provisions with a stranger as it can by owning and directing a subsidiary corporation, and evasion of its responsibilities by either method would equally undermine the purposes of the act. We believe the provision in question should be interpreted in the context of general agency law. It is sufficient that the distributor “is subject to the [manufacturer’s] * * * control or right to control.” Restatement (Second), Agency, § 220(1); Reconstruction Finance Corp. v. Merryfield, 1 Cir., 1943, 134 F.2d 988, 991.
Under the terms of defendant’s franchise from the automobile manufacturer, Volkswagen G.m.b.H., defendant was subject to the manufacturer’s control in much the same way and to much the same extent as defendant’s franchised dealers were subject to its control. Furthermore, the agreement obligated defendant to supervise and enforce its dealers’ compliance with the manufacturer’s regulations. It was not error to exclude defendant’s proffered evidence as to the manufacturer’s actual involvement with plaintiff’s franchise. What matters is that it had the power.
Defendant next contends that the evidence does not support a verdict in plaintiff’s favor on the merits. Before examining the record we must first inquire into the governing legal standards, which are not entirely clear from the face of the statute. Section 1222 requires the manufacturer to “act in good faith * * in terminating, canceling, or not renewing the franchise." Section 1221(e) defines “good faith" as
“the duty of each party to any franchise * * * to act in a fair and equitable manner toward each other so as to guarantee the one party freedom from coercion, intimidation, or- threats of coercion or intimidation from the other party: Provided, That recommendation, endorsement, exposition, persuasion, urging or argument shall not be deemed to constitute a lack of good faith.”
For a manufacturer to condition continuation of a franchise upon certain conduct, even if characterizable as a threat, cannot constitute forbidden coercion per se. It must appear that the condition was unfair or inequitable. To hold otherwise would not only circumscribe the manufacturer’s freedom to do business to an extent we cannot believe contemplated by Congress, but would lead to the absurd result that a manufacturer could not insist upon the very terms of the agreement.
Initially, we think there is an important difference between two kinds of improper conditions that a manufacturer might impose and back up by threats. Particularly suspect under the act are conditions which benefit only, or primarily, the manufacturer — for example, requirements that a dealer purchase large stocks of vehicles, spare parts, special tools or advertising matter — as distinguished from requirements that would tend to work to the mutual advantage of both parties, for example, that the dealer improve its service, or managerial efficiency. The manufacturer can easily extort demands of the first sort, increasing its own profit at the expense of the dealer’s; the act’s legislative history indicates that this was of particular concern to the Congress. The latter sort, even if the demands may be thought excessive under the circumstances, should not, without more, indicate that the manufacturer is taking advantage of the dealer, or using the franchise as a weapon for extortion, since the manufacturer stands to profit from his demands only if the dealer profits as well.
The jury could have found that defendant imposed several requirements upon plaintiff which, under the above analysis, if improper, would fall into the first group — conditions directly benefiting the manufacturer, but not necessarily the dealer. Plaintiff’s 1956 franchise required it to stock spare parts equal in cost to ten per cent of the value of its automobile stockthe 1958 franchise required him to purchase from defendant a welding machine, a line of Vespa motor scooters, a tractor, advertising materials, and tools; plaintiff was forced to sign the 1960 renewal contract without being given time to read its terms. Even if it be assumed that defendant acted unreasonably and coercively, not only did none of these events occur within the three-year statutory period before the action was commenced, 15 U.S.C. § 1223, but there is no evidence that plaintiff’s unfavorable reaction, but nonetheless acceptance of them, contributed to the subsequent termination or nonrenewal of his franchise. This latter was all the complaint sought. Kotula v. Ford Motor Co., 8 Cir., 1964, 338 F.2d 732, 736.
The jury could have found, as defendant contended, that defendant’s reason for terminating the franchise was that plaintiff failed to meet defendant’s standards of service, sales, efficiency, and appearance. Reading the record most favorably to plaintiff, we believe the jury could have found that the quality of his service was good; that his sales were adequate for the St. Croix area, and that any decline in sales during 1961 was due to circumstances beyond plaintiff’s control; that the appearance of plaintiff’s place of business, and its efficiency, were reasonable for that area; and that plaintiff’s failure to meet various contractual commitments also were the result of events beyond his control. However, plaintiff’s own evidence and admissions disclose that his performance could well have been better, and that it would not have been unreasonable for the manufacturer to conclude that, even if plaintiff’s enterprise was not below par for the Virgin Islands, another, more enterprising dealer could overcome many of the difficulties encountered by the plaintiff, and better represent Volkswagen’s interests in terms of service, sales and image.
As we have indicated, a disfranchised dealer does not make a case under the statute merely by proving that his performance was not below minimum limits. Plaintiff makes a special showing, however, intending to establish that it was not really his performance with which defendant was dissatisfied. In particular, plaintiff alleges that starting in 1960, defendant determined to take a direct share of the retail profits in the St. Croix area. Had defendant merely wished to own a dealership itself, it might have terminated plaintiff’s franchise and formed its own enterprise. But plaintiff asserts that defendant wanted a direct' share of the profits without making any, or any substantial, investment; that defendant threatened plaintiff with loss of the franchise unless he agreed to admit defendant to his operation; and that when plaintiff refused, defendant made good its threat. We turn to some of the relevant evidence.
In January 1961, defendant’s manager and substantial stockholder, Hinke, proposed to two St. Croix real-estate brokers that a joint enterprise be formed in which defendant, plaintiff, and the brokers’ group would each have a one-third interest. One of the brokers testified as to Hinke’s proposal:
“They were to participate financially and supposedly to give us service help, * * * He [Hinke] would have one-third of it, but I don’t believe he was going to put in money. We rejected the idea.”
Plaintiff testified that Hinke put essentially the same offer to him:
“[H]e made a proposition in which he wanted to set up a new business for the Volkswagen franchise and offered me 1/3 participation. These people would get 1/3 and Volkswagen would get 1/3. I asked concerning the capitalization and he said it was to be capitalized for $100,000 and I said to him, Mr. Hinke, the last statement we sent you showed that we had a business worth $230,000.00. How in the world could I invest this against the capitalization for 1/3 of the $100,000.00, I said this is untenable. He said, I can see how you think about it, but I think in the long run you would be much farther ahead. * * * ”
Plaintiff rejected the offer at the time it was proposed, and Hinke left St. Croix. Immediately thereafter, Hinke wrote to plaintiff that defendant had decided “not to continue our relationship on the present basis, due to the fact that some of the essentials of the Volkswagen business in St. Croix have been overlooked. * * ” The jury could have found that when píaíntiff came to Puerto Rico upon receipt of this letter, he threatened to go to Germany to complain of the treatment he was receiving from defendant, and that Hinke immediately changed his attitude and offered to, and for a short period did in fact, lend assistance to plaintiff. In January 1962, plaintiff opened up a new showroom, which, the jury could have found, was attractive in appearance and favorably displayed Volkswagen automobiles. On September 24,1962 defendant wrote to plaintiff that all business relations between them had terminated for cause as of August 31, 1962.
To render a verdict in plaintiff’s favor, the jury would have had not only to disbelieve contradictory testimony, but also to conclude that certain of defendant’s conduct, superficially inconsistent with the motives plaintiff ascribes to defendant, was intentionally contrived to disguise defendant’s true purposes. Some of defendant’s conduct could lead a reasonable jury to that conclusion. For example, the jury might have found unconvincing and contrived Hinke’s claim that he first came to St. Croix in the fall of 1960 because he was concerned with a “strong backward trend in the sales,” in view of the fact that the sales up to his arrival in St. Croix were twice those of the previous year, and that any decline in sales from the high point of the-early months followed the usual seasonal trend of the four years in which plaintiff had been in business. The jury might further have believed that other criticisms of the plaintiff’s operation— for example, that his servicing was poor —were false, or exaggerated.
We could agree with defendant that discussions with other persons looking ‘towards their taking over a franchise, are not only not inconsistent with a claim that the dealer’s performance was inadequate, but would be only natural. The case at bar was unusual, however, in that the contemplated change-over was one in which the defendant would share. On Hinke’s own testimony, this would have been “a negative situation * * * very much contrary to our doings. We feel always that we should not enter the retail field.” The jury might well have found inadequately explained why, in the light of this protestation, defendant sought to establish a new dealership in which it was to participate. The jury could well find that the initially threatened termination was not in good faith. With this as a background, we believe that on the record as a whole there was a jury question whether defendant’s termination of the franchise related to the conduct of plaintiff’s agency, or to his rejection of the defendant as a partner upon unreasonable terms. If the latter, it was a clear violation of the Dealers’ Act.
Defendant next contends that the Dealers’ Act “is unconstitutional both by virtue of its arbitrary distinctions unrelated to the public interest and because of the vagueness of the standard of conduct which it purports to legislate.”
Defendant cites no cases in support of its first argument and we doubt that it could find substantial support in any case decided within, at least, the last quarter century. The legislation was enacted in the context of committee findings of widespread abuse by automobile manufacturers of their franchised dealers. H.R.Rep. No. 2850, 84th Cong., 2d Sess. (1956); S.Rep. No. 2073, 84th Cong., 2d Sess. (1956), U.S.Code of Congressional and Administrative News 1956, p. 4596. It is clearly responsive to this problem, and not only gives protection to the approximately 40,000 franchised automobile dealers in the United States — a sufficient “public purpose” in itself — but could be found to redound to the ultimate benefit of the public at large. See 102 Cong.Rec. 4848, 7482 (1956).
For its second point, defendant relies chiefly on General Motors Corp. v. Blevins, D.Colo., 1956, 144 F. Supp. 381, which struck down an analogous state statute. Although Blevins involved penal sanctions, and “the standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanctions for enforcement,” Winters v. People of State of New York, 1948, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840, we will not say that a civil statute could not be so vague as to offend the due process clause. Without expressing any view as to the correctness of Blevins, however, we think it is significantly different from the case at bar. The state legislation punished a manufacturer who “unfairly, without due regard to the equities of said dealer and without just provocation, can-celled the franchise of any motor vehicle dealer.” While the federal Dealers’ Act imposes a requirement of “good faith,” section 1221(e), as we discussed at some length above, narrows the meaning of that term to a considerable extent. It may be true that the statute in effect delegates some responsibility to the courts to refine and develop standards under the act on a case-by-case basis, but this is neither unusual nor unconstitional. Cf. Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972. Whatever might be said about the Dealers’ Act if it subjected a manufacturer to criminal penalties, we hold that it is sufficiently clear to withstand a constitutional challenge of vagueness. Blenke Brothers Co. v. Ford Motor Co., N.D. Ind., 1962, 203 F.Supp. 670.
Defendant raises a number of less fundamental questions, all of which we have considered, but only one of which merits comment. This relates to the alleged prejudicial behavior of the trial court. Review of the record reveals nothing of any possible moment, except ford1 some occasional sharp remarks to defendant’s counsel. The reason, and justification, for these remarks, however, is quite apparent. It is inappropriate for counsel to complain of -treatment he has invited, particularly when that treatment is well within responsive limits. We have said before, and we repeat, such claims should not be made at all unless they are very sound. The proposition that counsel can disregard the court’s instructions, obtain a rebuke, and then preserve the incident as insurance in the event the case is lost, does not sit well.
There remains the matter of damages. Perhaps the best introduction to the subject is to mention two of the more extraordinary of the arguments made in this court. Defendant contends that the plaintiff’s income tax return should not be considered because it was introduced “by the defendant” (ital. in orig.), and would not have been competent if offered by the plaintiff. It is true that this, and some other evidence in fact favorable to the plaintiff, was introduced by the defendant, but it is a novel concept that evidence is available only to the party who introduces it. Plaintiff evens the score, however, by arguing that possible errors in the court’s charge as to certain items of damages need not be noticed because the jury might have reached the equivalent monetary result by some other route. This argument is not quite so original, but no better. Neither it, nor any other argument can overcome the court’s error in permitting the jury to find that if plaintiff had received the last 117 cars he had ordered (for only 25 of which he had firm orders from customers), his profit on all 117 would have been the same as the gross mark-up. Manifestly there would have been some expense, even if all had ultimately been sold. It was likewise error, particularly when defendant had expressly offered to take useless parts and inventory off plaintiff’s hands, for the court to refuse to charge on plaintiff’s duty to mitigate the damages which plaintiff claimed for being left with this material.
These were substantial errors. The court also erred in charging the jury that the contract had never been terminated. The basic agreement may have been automatically renewed in 1961 and 1962, but defendant’s unequivocal letter of September 24, 1962 clearly operated to terminate the franchise.
Whether defendant adequately saved its rights with respect to certain other damage matters we need not determine. Since we hold there must be a new trial on this issue, we will consider them in any event. We think the court was exceptionally liberal in permitting the plaintiff to testify to figures concerning his profits and the value of the franchise off the top of his head, without reference to books and records. Possibly the defendant's only remedy was cross-examination. Possibly, too, before another trial, the defendant will want to take plaintiff’s deposition in St. Croix where the records are. Second, we find most unrealistic plaintiff’s self-evaluation of his franchise on a 6% basis in his brief before us, so that an income of $18,000 made it worth $300,000. This was surely impermissible when $18,000 was plaintiff’s best year, and in the next he lost $12,000. As we look at the record as a whole, more evidence, and a detailed explanatory charge, should have been required on any franchise valuation claim.
Finally, we find no basis in the Dealers’ Act for allowing plaintiff to recover damages for injury to his reputation caused by the termination. The parties have given us no assistance here, but we think a close analogy can be found in the rule that such damages cannot be recovered for breach of an employment contract. Mastoras v. Chicago, M. & St. P. Ry., W.D.Wash. 1914, 217 F. 153; Sinclair v. Positype Corp. of America, 1933, 237 App.Div. 525, 261 N.Y.S. 900. Plaintiff should not have been allowed to claim that the mere termination of his dealership was a personal reflection.
Judgment will be entered vacating the judgment of the District Court and the verdict of the jury insofar as it made an assessment of the damages. The finding of liability will stand and a new trial ordered on the issue of damages.
. Suit may be brought in any district in which the defendant “resides, or is found, or has an agent.” 15 U.S.C. § 1222.
. We note that standardization of franchises is common not only within the operations of a particular manufacturer or distributor, but in the automobile industry as a whole. Kessler, Automobile Dealer Franchises: Vertical Integration by Contract, 66 Tale L.J. 1135, 1138-39 (1957).
. Plaintiff’s listing these alleged losses in his brief to justify the size of the verdict was, accordingly, improper.
. Throughout the record, Hinke and defendant are referred to interchangeably. The jury could have found that the interest was to be defendant’s, and not Hinke’s personally.
. In view of plaintiff’s restatement of Hinke’s proposal in a letter of February 6, 1961, to Hinke, a jury could not have found that defendant proposed that all of the assets of plaintiff’s present dealership were to be transferred to the new enterprise. In particular, the new dealership was to have a new building at a different site. The jury could have found, however, that defendant required that plaintiff invest $37,000 in addition to whatever part of its present investment would be transferred to the new enterprise.
. They were also substantially greater than 1957, and only slightly below the sales for 1958.
. Defendant complains because plaintiff was permitted to introduce testimony, following Hinke’s above-quoted statement on direct, that defendant, after unsuccessfully attempting to buy into the business of its Puerto Rico dealer, cancelled the franchise and substituted VWPR. Defendant may be correct that this- incident would not be admissible to contradict Hinke’s statement that defendant’s “general policy” was not to terminate dealerships. But it was certainly admissible to rebut Hinke’s claim that defendant had no interest in participating in plaintiff’s business because it never entered the retail market.
. An even more pretentious argument was made to the jury.
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_lcdisposition
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B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
Stanley TAYLOR, et al.
v.
Karen BARKES, et al.
No. 14-939.
Supreme Court of the United States
June 1, 2015.
Opinion PER CURIAM.
Christopher Barkes, "a troubled man with a long history of mental health and substance abuse problems," was arrested on November 13, 2004, for violating his probation. Barkes v. First Correctional Medical, Inc.,766 F.3d 307, 310-311 (C.A.3 2014). Barkes was taken to the Howard R. Young Correctional Institution in Wilmington, Delaware. As part of Barkes's intake, a nurse who worked for the contractor providing healthcare at the Institution conducted a medical evaluation. Id.,at 311.
The evaluation included a mental health screening designed in part to assess whether an inmate was suicidal. The nurse employed a suicide screening form based on a model form developed by the National Commission on Correctional Health Care (NCCHC) in 1997. The form listed 17 suicide risk factors. If the inmate's responses and nurse's observations indicated that at least eight were present, or if certain serious risk factors were present, the nurse would notify a physician and initiate suicide prevention measures. Id.,at 311, 313.
Barkes disclosed that he had a history of psychiatric treatment and was on medication. He also disclosed that he had attempted suicide in 2003, though not-as far as the record indicates-that he had also done so on three other occasions. And he indicated that he was not currently thinking about killing himself. Because only two risk factors were apparent, the nurse gave Barkes a "routine" referral to mental health services and did not initiate any special suicide prevention measures. Id.,at 311.
Barkes was placed in a cell by himself. Despite what he had told the nurse, that evening he called his wife and told her that he "can't live this way anymore" and was going to kill himself. Barkes's wife did not inform anyone at the Institution of this call. The next morning, correctional officers observed Barkes awake and behaving normally at 10:45, 10:50, and 11:00 a.m. At 11:35 a.m., however, an officer arrived to deliver lunch and discovered that Barkes had hanged himself with a sheet. Id.,at 311-312.
Barkes's wife and children, respondents here, brought suit under Rev. Stat. § 1979, 42 U.S.C. § 1983, against various entities and individuals connected with the Institution, who they claimed had violated Barkes's civil rights in failing to prevent his suicide. At issue here is a claim against petitioners Stanley Taylor, Commissioner of the Delaware Department of Correction (DOC), and Raphael Williams, the Institution's warden. Although it is undisputed that neither petitioner had personally interacted with Barkes or knew of his condition before his death, respondents alleged that Taylor and Williams had violated Barkes's constitutional right to be free from cruel and unusual punishment. Barkes v. First Correctional Medical, Inc.,2008 WL 523216, *7 (D.Del., Feb. 27, 2008). They did so, according to respondents, by failing to supervise and monitor the private contractor that provided the medical treatment-including the intake screening-at the Institution. Petitioners moved for summary judgment on the ground that they were entitled to qualified immunity, but the District Court denied the motion. Barkes v. First Correctional Medical, Inc.,2012 WL 2914915, *8-*12 (D.Del., July 17, 2012).
A divided panel of the Court of Appeals for the Third Circuit affirmed. The majority first determined that respondents had alleged a cognizable theory of supervisory liability (a decision upon which we express no view). 766 F.3d, at 316-325. The majority then turned to the two-step qualified immunity inquiry, asking "first, whether the plaintiff suffered a deprivation of a constitutional or statutory right; and second, if so, whether that right was 'clearly established' at the time of the alleged misconduct." Id.,at 326.
Taking these questions in reverse order, the Third Circuit held that it was clearly established at the time of Barkes's death that an incarcerated individual had an Eighth Amendment "right to the proper implementation of adequate suicide prevention protocols." Id.,at 327. The panel majority then concluded there were material factual disputes about whether petitioners had violated this right by failing to adequately supervise the contractor providing medical services at the prison. There was evidence, the majority noted, that the medical contractor's suicide screening process did not comply with NCCHC's latest standards, as required by the contract. Those standards allegedly called for a revised screening form and for screening by a qualified mental health professional, not a nurse. There was also evidence that the contractor did not have access to Barkes's probation records (which would have shed light on his mental health history), and that the contractor had been short-staffing to increase profits. Id.,at 330-331.
Judge Hardiman dissented. As relevant here, he concluded that petitioners were entitled to qualified immunity because the right on which the majority relied was "a departure from Eighth Amendment case law that had never been established before today." Id.,at 345.
Taylor and Williams petitioned for certiorari. We grant the petition and reverse on the ground that there was no violation of clearly established law.
"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards,566 U.S. ----, ----, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012). "To be clearly established, a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ibid.(brackets and internal quotation marks omitted). "When properly applied, [qualified immunity] protects all but the plainly incompetent or those who knowingly violate the law." Ashcroft v. al-Kidd,563 U.S. ----, ----, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011)(internal quotation marks omitted). "We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Id.,at ----, 131 S.Ct., at 2083.
The Third Circuit concluded that the right at issue was best defined as "an incarcerated person's right to the proper implementation of adequate suicide prevention protocols." 766 F.3d, at 327. This purported right, however, was not clearly established in November 2004 in a way that placed beyond debate the unconstitutionality of the Institution's procedures, as implemented by the medical contractor.
No decision of this Court establishes a right to the proper implementation of adequate suicide prevention protocols. No decision of this Court even discusses suicide screening or prevention protocols. And "to the extent that a 'robust consensus of cases of persuasive authority' " in the Courts of Appeals "could itself clearly establish the federal right respondent alleges," City and County of San Francisco v. Sheehan,575 U.S. ----, ----, 135 S.Ct. 1765, 1779, --- L.Ed.2d ---- (2015), the weight of that authority at the time of Barkes's death suggested that such a right did notexist. See, e.g.,Comstock v.
McCrary,273 F.3d 693, 702 (C.A.6 2001)("the right to medical care for serious medical needs does not encompass the right to be screened correctly for suicidal tendencies" (internal quotation marks omitted)); Tittle v. Jefferson Cty. Comm'n,10 F.3d 1535, 1540 (C.A.11 1994)(alleged "weaknesses in the [suicide] screening process, the training of deputies[,] and the supervision of prisoners" did not "amount to a showing of deliberate indifference toward the rights of prisoners"); Burns v. Galveston,905 F.2d 100, 104 (C.A.5 1990)(rejecting the proposition that "the right of detainees to adequate medical care includes an absolute right to psychological screening"); Belcher v. Oliver,898 F.2d 32, 34-35 (C.A.4 1990)("The general right of pretrial detainees to receive basic medical care does not place upon jail officials the responsibility to screen every detainee for suicidal tendencies.").
The Third Circuit nonetheless found this right clearly established by two of its own decisions, both stemming from the same case. Assuming for the sake of argument that a right can be "clearly established" by circuit precedent despite disagreement in the courts of appeals, neither of the Third Circuit decisions relied upon clearly established the right at issue. The first, Colburn I,said that if officials "know or should know of the particular vulnerability to suicide of an inmate," they have an obligation "not to act with reckless indifference to that vulnerability." Colburn v. Upper Darby Twp.,838 F.2d 663, 669 (1988). The decision did not say, however, that detention facilities must implement procedures to identify such vulnerable inmates, let alone specify what procedures would suffice. And the Third Circuit later acknowledged that Colburn I 's use of the phrase "or should know"-which might seem to nod toward a screening requirement of some kind-was erroneous in light of Farmer v. Brennan,511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), which held that Eighth Amendment liability requires actual awareness of risk. See Serafin v. Johnstown,53 Fed.Appx. 211, 213 (C.A.3 2002).
Nor would Colburn IIhave put petitioners on notice of any possible constitutional violation. Colburn IIreiterated that officials who know of an inmate's particular vulnerability to suicide must not be recklessly indifferent to that vulnerability. Colburn v. Upper Darby Twp.,946 F.2d 1017, 1023 (1991). But it did not identify any minimum screening procedures or prevention protocols that facilities must use. In fact, Colburn IIrevealed that the booking process of the jail at issue "include[d] no formal physical or mental health screening," ibid.,and yet the Third Circuit ruled for the defendants on all claims, see id.,at 1025-1031.
In short, even if the Institution's suicide screening and prevention measures contained the shortcomings that respondents allege, no precedent on the books in November 2004 would have made clear to petitioners that they were overseeing a system that violated the Constitution. Because, at the very least, petitioners were not contravening clearly established law, they are entitled to qualified immunity. The judgment of the Third Circuit is reversed.
It is so ordered.
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:
|
sc_issuearea
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
KOLSTAD v. AMERICAN DENTAL ASSOCIATION
No. 98-208.
Argued March 1, 1999 —
Decided June 22, 1999
O’Connor, J., delivered the opinion of the Court, Part I of which was unanimous, Part II-A of which was joined by Stevens, Soalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., and Part II-B of which was joined by Rehnquist, C. J., and Scaiia, Kennedy, and Thomas, JJ. Rehnquist, C. J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined, post, p. 547. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 547.
Eric Schnapper argued the cause for petitioner. With him on the briefs was Joseph A. Yablonski.
Solicitor General Waxman argued the cause for the United States et al. as amici curiae in support of petitioner. With him on the brief were Acting Assistant Attorney General Lee, Deputy Solicitor General Underwood, Patricia A. Millett, Dennis J. Dimsey, Gregory B. Friel, G. Gregory Stewart, Philip B. Sklover, and Robert J. Gregory.
Raymond C. Fay argued the cause for respondent. With him on the brief were Stephen D. Shawe, Bruce S. Harrison, and Peter M. Sfikas.
Briefs of amici curiae urging reversal were filed for the Association of Trial Lawyers of America by Jeffrey L. Needle and Mark S. Mandell; for the National Employment Lawyers Association et al. by Janice Goodman, Paula A Braniner, and Peter S. Rukin; and for the Rutherford Institute by John W. Whitehead and Steven H. Aden.
Briefs of amici curiae urging affirmance were filed for the Equal Employment Advisory Council by Robert E. Williams and Ann Elizabeth Reesman; for the National Retail Federation by Robert P. Joy; for the Society for Human Resource Management by D. Gregory Valenza and Roger S. Kaplan; and for the Washington Legal Foundation by Michael J. Connolly, David A. Lawrence, Clifford J. Scharman, Daniel J. Popeo, and Paul D. Kamenar.
Briefs of amici curiae were filed for the Chamber of Commerce of the United States by Timothy B. Dyk, Daniel H. Bromberg, John B. Kennedy, Stephen A Bokat, and Robin S. Conrad; and for the Lawyers’ Committee for Civil Rights Under Law et al. by James M. Finberg, Daniel F. Kolb, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Richard T. Seymour, Teresa A Ferrante, Dennis C. Hayes, Willie Abrams, Antonia Hernandez, Patricia Mendoza, Judith L. Lichtman, Donna R. Lenhoff, Judith C. Appelbaum, Martha F. Davis, Yolanda S. Wu, and Steven R. Shapiro.
Justice O’Connor
delivered the opinion of the Court.
Under the terms of the Civil Rights Act of 1991 (1991 Act), 105 Stat. 1071, punitive damages are available in claims under Title VII of the Civil Rights Act of 1964 (Title VII), 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. (1994 ed. and Supp. III), and the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 328, 42 U. S. C. § 12101 et seq. Punitive damages are limited, however, to cases in which the employer has engaged in intentional discrimination and has done so “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Rev. Stat. § 1977, as amended, 42 U. S. C. § 1981a(b)(1). We here consider the circumstances under which punitive damages may be awarded in an action under Title VIL
I
A
In September 1992, Jack O’Donnell announced that he would be retiring as the Director of Legislation and Legislative Policy and Director of the Council on Government Affairs and Federal Dental Services for respondent, American Dental Association (respondent or Association). Petitioner, Carole Kolstad, was employed with O’Donnell in respondent’s Washington, D. C., office, where she was serving as respondent’s Director of Federal Agency Relations. When she learned of O’Donnell’s retirement, she expressed an interest in filling his position. Also interested in replacing O’Donnell was Tom Spangler, another employee in respondent’s Washington office. At this time, Spangler was serving as the Association’s Legislative Counsel, a position that involved him in respondent’s legislative lobbying efforts. Both petitioner and Spangler had worked directly with O’Donnell, and both had received “distinguished” performance ratings by the acting head of the Washington office, Leonard Wheat.
Both petitioner and Spangler formally applied for O’Donnell’s position, and Wheat requested that Dr. William Allen, then serving as respondent’s Executive Director in the Association’s Chicago office, make the ultimate promotion decision. After interviewing both petitioner and Spangler, Wheat recommended that Allen select Spangler for O’Donnell’s post. Allen notified petitioner in December 1992 that he had, in fact, selected Spangler to serve as O’Donnell’s replacement. Petitioner’s challenge to this employment decision forms the basis of the instant action.
B
After first exhausting her avenues for relief before the Equal Employment Opportunity Commission, petitioner filed suit against the Association in Federal District Court, alleging that respondent’s decision to promote Spangler was an act of employment discrimination proscribed under Title VII. In petitioner’s view, the entire selection process was a sham. Tr. 8 (Oct. 26, 1995) (closing argument for plaintiff’s counsel). Counsel for petitioner urged the jury to conclude that Allen’s stated reasons for selecting Spangler were pretext for gender discrimination, id., at 19, 24, and that Spangler had been chosen for the position before the formal selection process began, id., at 19. Among the evidence offered in support of this view, there was testimony to the effect that Allen modified the description of O’Donnell’s post to track aspects of the job description used to hire Spangler. See id., at 132-136 (Oct. 19, 1995) (testimony of Cindy Simms); id., at 48-51 (Oct. 20, 1995) (testimony of Leonard Wheat). In petitioner’s view, this “preselection” procedure suggested an intent by the Association to discriminate on the basis of sex. Id., at 24. Petitioner also introduced testimony at trial that Wheat told sexually offensive jokes and that he had referred to certain prominent professional women in derogatory terms. See id., at 120-124 (Oct. 18, 1995) (testimony of Carole Kolstad). Moreover, Wheat allegedly refused to meet with petitioner for several weeks regarding her interest in O’Donnell’s position. See id., at 112-113. Petitioner testified, in fact, that she had historically experienced difficulty gaining access to meet with Wheat. See id., at 114-115. Allen, for his part, testified that he conducted informal meetings regarding O’Donnell’s position with both petitioner and Spangler, see id., at 148 (Oct. 23, 1995), although petitioner stated that Allen did not discuss the position with her, see id., at 127-128 (Oct. 18, 1995).
The District Court denied petitioner’s request for a jury instruction on punitive damages. The jury concluded that respondent had discriminated against petitioner on the basis of sex and awarded her backpay totaling $52,718. App. 109-110. Although the District Court subsequently denied respondent’s motion for judgment as a matter of law on the issue of liability, the court made clear that it had not been persuaded that respondent had selected Spangler over petitioner on the basis of sex, and the court denied petitioner’s requests for reinstatement and for attorney’s fees. 912 F. Supp. 13, 15 (DC 1996).
Petitioner appealed from the District Court’s decisions denying; her requested jury instruction on punitive damages and her request for reinstatement and attorney’s fees. Respondent cross-appealed from the denial of its motion for judgment as a matter of law. In a split decision, a panel of the Court of Appeals for the District of Columbia reversed the District Court’s decision denying petitioner’s request for an instruction on punitive damages. 108 F. 3d 1431, 1435 (1997). In so doing, the court rejected respondent’s claim that punitive damages are available under Title VII only in “‘extraordinarily egregious cases.’” Id., at 1437. The panel reasoned that, “because ‘the state of mind necessary to trigger liability for the wrong is at least as culpable as that required to make punitive damages applicable,’ ” id., at 1438 (quoting Rowlett v. Anheuser-Busch, Inc., 832 F. 2d 194, 205 (CA1 1987)), the fact that the jury could reasonably have found intentional discrimination meant that the jury should have been permitted to consider punitive damages. The court noted, however, that not all cases involving intentional discrimination would support a punitive damages award. 108 F. 3d, at 1438. Such an award might be improper, the panel reasoned, in instances where the employer justifiably believes that intentional discrimination is permitted or where an employee engages in discrimination outside the scope of that employee’s authority. Id., at 1438-1439. Here, the court concluded, respondent “neither attempted to justify the use of sex in its promotion decision nor disavowed the actions of its agents.” Id., at 1439.
The Court of Appeals subsequently agreed to rehear the case en banc, limited to the punitive damages question. In a divided opinion, the court affirmed the decision of the District Court. 139 F. 3d 958 (1998). The en bane majority concluded that, “before the question of punitive damages can go to the jury, the evidence of the defendant’s culpability must exceed what is needed to show intentional discrimination.” Id., at 961. Based on the 1991 Act’s structure and legislative history, the court determined, specifically, that a defendant must be shown to have engaged in some “egregious” misconduct before the jury is permitted to consider a request for punitive damages. Id., at 965. Although the court declined to set out the “egregiousness” requirement in any detail, it concluded that petitioner failed to make the requisite showing in the instant case. Judge Randolph concurred, relying chiefly on § 1981a’s structure as evidence of a congressional intent to “limi[t] punitive damages to exceptional cases.” Id., at 970. Judge Tatel wrote in dissent for five judges, who agreed generally with the panel majority.
We granted certiorari, 525 U. S. 960 (1998), to resolve a conflict among the Federal Courts of Appeals concerning the circumstances under which a jury may consider a request for punitive damages under § 1981a(b)(1). Compare 139 F. 3d 958 (CADC 1998) (case below), with Luciano v. Olsten Corp., 110 F. 3d 210, 219-220 (CA2 1997) (rejecting contention that punitive damages require showing of “extraordinarily egregious” conduct).
II
A
Prior to 1991, only equitable relief, primarily backpay, was available to prevailing Title VII plaintiffs; the statute provided no authority for an award of punitive or compensatory damages. See Landgraf v. USI Film Products, 511 U. S. 244,252-253 (1994). With the passage of the 1991 Act, Congress provided for additional remedies, including punitive damages, for certain classes of Title VII and ADA violations.
The 1991 Act limits compensatory and punitive damages awards, however, to cases of "intentional discrimination”— that is, cases that do not rely on the “disparate impact” theory of discrimination. 42 U. S. C. § 1981a(a)(1). Section 1981a(b)(1) further qualifies the availability of punitive awards:
“A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” (Emphasis added.)
The very structure of § 1981a suggests a congressional intent to authorize punitive awards in only a subset of eases involving intentional discrimination. Section 1981a(a)(1) limits compensatory and punitive awards to instances of intentional discrimination, while § 1981a(b)(1) requires plaintiffs to make an additional “demonstration]” of their eligibility for punitive damages. Congress plainly sought to impose two standards of liability — one for establishing a right to compensatory damages and another, higher standard that a plaintiff must satisfy to qualify for a punitive award.
The Court of Appeals sought to give life to this two-tiered structure by limiting punitive awards to eases involving intentional discrimination of an “egregious” nature. We credit the en bane majority’s effort to effectuate congressional intent, but, in the end, we reject its conclusion that eligibility for punitive damages can only be described in terms of an employer’s “egregious” misconduct. The terms “malice” and “reckless” ultimately focus on the actor’s state of mind. See, e. g., Black’s Law Dictionary 956-957, 1270 (6th ed. 1990); see also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton, Law of Torts 212-214 (5th ed. 1984) (defining “willful,” “wanton,” and “reckless”). While egregious misconduct is evidence of the requisite mental state, see infra, at 538-589; Keeton, supra, at 213-214, § 1981a does not limit plaintiffs to this form of evidence, and the section does not require a showing of egregious or outrageous discrimination independent of the employer’s state of mind. Nor does the statute’s structure imply an independent role for “egregiousness” in the face of congressional silence. On the contrary, the view that § 1981a provides for punitive awards based solely on an employer’s state of mind is consistent with the 1991 Act’s distinction between equitable and compensatory relief. Intent determines which remedies are open to a plaintiff here as well; compensatory awards are available only where the employer has engaged in “intentional discrimination.” § 1981a(a)(1) (emphasis added).
Moreover, § 1981a’s focus on the employer’s state of mind gives some effect to Congress’ apparent intent to narrow the class of cases for which punitive awards are available to a subset of those involving intentional discrimination. The employer must act with “malice or with reckless indifference to the [plaintiff’sJ federally protected rights.” § 1981a(b)(1) (emphasis added). The terms “malice” or “reckless indifference” pertain to the employer’s knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.
We gain an understanding of the meaning of the terms “malice” and “reckless indifference,” as used in § 1981a, from this Court’s decision in Smith v. Wade, 461 U. S. 30 (1983). The parties, as well as both the en banc majority and dissent, recognize that Congress looked to the Court’s decision in Smith in adopting this language in § 1981a. See Tr. of Oral Arg. 28-29; Brief for Petitioner 24; 139 F. 3d, at 964-965; id., at 971 (Tatel, J., dissenting). Employing language similar to what later appeared in § 1981a, the Court concluded in Smith that "a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” 461 U. S., at 56. While the Smith Court determined that it was unnecessary to show actual malice to qualify for a punitive award, id., at 45-48, its intent standard, at a minimum, required recklessness in its subjective form. The Court referred to a “subjective consciousness” of a risk of injury or illegality and a “ ‘criminal indifference to civil obligations.’ ” Id., at 37, n. 6, 41 (quoting Philadelphia, W. & B. R. Co. v. Quigley, 21 How. 202, 214 (1859)); see also Farmer v. Brennan, 511 U. S. 825, 837 (1994) (explaining that criminal law employs a subjective form of recklessness, requiring a finding that the defendant “disregards a risk of harm of which he is aware”); see generally 1 T. Sedgwick, Measure of Damages §§366, 368, pp. 528, 529 (8th ed. 1891) (describing “wantonness” in punitive damages context in terms of “criminal indifference” and “gross negligence” in terms of a “conscious indifference to consequences”). The Court thus compared the recklessness standard to the requirement that defendants act with “ ‘knowledge of falsity or reckless disregard for the truth’ ” before punitive awards are available in defamation actions, Smith, supra, at 50 (quoting Gertz v. Robert Welch, Inc., 418 U. S. 323, 349 (1974)), a subjective standard, Harte-Hanks Communications, Inc. v. Connaughton, 491 U. S. 657, 688 (1989). Applying this standard in the context of § 1981a, an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be Hable in punitive damages.
There will be circumstances where intentional discrimination does not give rise to punitive damages Hability under this standard. In some instances, the employer may simply be unaware of the relevant federal prohibition. There will be eases, moreover, in which the employer discriminates with the distinct belief that its discrimination is lawful. The underlying theory of discrimination may be novel or otherwise poorly recognized, or an employer may reasonably believe that its discrimination satisfies a bona fide occupational qualification defense or other statutory exception to liability. See, e. g., 42 U. S. C. §2000e-2(e)(1) (setting out Title VII defense “where religion, sex, or national origin is a bona fide occupational qualification”); see also § 12113 (setting out defenses under ADA). In Hazen Paper Co. v. Biggins, 507 U. S. 604, 616 (1993), we thus observed that, in light of statutory defenses and other exceptions permitting age-based de-cisionmaking, an employer may knowingly rely on age to make employment decisions without recklessly violating the Age Discrimination in Employment Act of 1967 (ADEA). Accordingly, we determined that limiting liquidated damages under the ADEA to cases where the employer “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute,” without an additional showing of outrageous conduct, was sufficient to give effect to the ADEA’s two-tiered liability scheme. Id., at 616, 617.
At oral argument, respondent urged that the common law tradition surrounding punitive awards includes an “egregious misconduct” requirement. See, e. g., Tr. of Oral Arg. 26-28; see also Brief for Chamber of Commerce of the United States as Amicus Curiae 8-22 (advancing this argument). We assume that Congress, in legislating on punitive awards, imported common law principles governing this form of relief. See, e. g., Molzof v. United States, 502 U. S. 301, 307 (1992). Moreover, some courts and commentators have described punitive awards as requiring both a specified state of mind and egregious or aggravated misconduct. See, e. g., 1 D. Dobbs, Law of Remedies 468 (2d ed. 1993) (“Punitive damages are awarded when the defendant is guilty of both a bad state of mind and highly serious misconduct”).
Most often, however, eligibility for punitive awards is characterized in terms of a defendant’s motive or intent. See, e. g., 1 Sedgwick, supra, at 526, 528; C. McCormick, Law of Damages 280 (1935). Indeed, “[t]he justification of exemplary damages lies in the evil intent of the defendant.” 1 Sedgwick, supra, at 526; see also 2 J. Sutherland, Law of Damages §390, p. 1079 (3d ed. 1903) (discussing punitive damages under rubric of “[compensation for wrongs done with bad motive”). Accordingly, “a positive element of conscious wrongdoing is always required.” McCormick, supra, at 280.
Egregious misconduct is often associated with the award of punitive damages, but the reprehensible character of the conduct is not generally considered apart from the requisite state of mind. Conduct warranting punitive awards has been characterized as “egregious,” for example, because of the defendant’s mental state. See Restatement (Second) of Torts § 908(2) (1979) (“Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others”). Respondent, in fact, appears to endorse this characterization. See, e. g., Brief for Respondent 19 (“Malicious and reckless conduct [is] by definition egregious”); see also id., at 28-29. That conduct committed with the specified mental state may be characterized as egregious, however, is not to say that employers must engage in conduct with some independent, “egregious” quality before being subject to a punitive award.
To be sure, egregious or outrageous acts may serve as evidence supporting an inference of the requisite “evil motive.” “The allowance of exemplary damages depends upon the bad motive of the wrong-doer as exhibited by his acts” 1 Sedgwick, supra, at 529 (emphasis added); see also 2 Sutherland, supra, §394, at 1101 (“The spirit which actuated the wrong-doer may doubtless be inferred from the circumstances surrounding the parties and the transaction”); see, e. g., Chizmar v. Mackie, 896 P. 2d 196, 210 (Alaska 1995) (“[W]here there is no evidence that gives rise to an inference of actual malice or conduct sufficiently outrageous to be deemed equivalent to actual malice, the trial court need not, and indeed should not, submit the issue of punitive damages to the jury” (internal quotation marks omitted)); Horton v. Union Light, Heat & Power Co., 690 S. W. 2d 382, 389 (Ky. 1985) (observing that “malice... may be implied from outrageous conduct”). Likewise, under § 1981a(b)(1), pointing to evidence of an employer’s egregious behavior would provide one means of satisfying the plaintiff’s burden to “demonstrate]” that the employer acted with the requisite “malice or... reckless indifference.” See 42 U. S. C. § 1981a(b)(1); see, e. g., 3 BNA EEOC Compliance Manual N:6085-N6084 (1992) (Enforcement Guidance: Compensatory and Punitive Damages Available Under §102 of the Civil Rights Act of 1991) (listing “[t]he degree of egregiousness and nature of the respondent’s conduct” among evidence tending to show malice or reckless disregard). Again, however, respondent has not shown that the terms “reckless indifference” and “malice,” in the punitive damages context, have taken on a consistent definition including an independent, “egregiousness” requirement. Cf. Morissette v. United States, 342 U. S. 246, 263 (1952) (“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed”).
B
The inquiry does not end with a showing of the requisite “malice or... reckless indifference” on the part of certain individuals, however. 42 U. S. C. § 1981a(b)(1). The plaintiff must impute liability for punitive damages to respondent. The en bane dissent recognized that agency principles place limits on vicarious liability for punitive damages. 139 F. 3d, at 974 (Tatel, J., dissenting). Likewise, the Solicitor General as amicus acknowledged during argument that common law limitations on a principal’s liability in punitive awards for the acts of its agents apply in the Title VII context. Tr. of Oral Arg. 23.
Justice Stevens urges that we should not consider these limitations here. See post, at 552-558 (opinion concurring in part and dissenting in part). While we decline to engage in any definitive application of the agency standards to the facts of this case, see infra, at 546, it is important that we address the proper legal standards for imputing liability to an employer in the punitive damages context. This issue is intimately bound up with the preceding discussion on the evidentiary showing necessary to qualify for a punitive award, and it is easily subsumed within the question on which we granted certiorari — namely, “[i]n what circumstances may punitive damages be awarded under Title VII of the 1964 Civil Rights Act, as amended, for unlawful intentional discrimination?” Pet. for Cert, i; see also this Court’s Rule 14.1(a). “On a number of occasions, this Court has considered issues waived by the parties below and in the petition for certiorari because the issues were so integral to decision of the case that they could be considered ‘fairly subsumed’ by the actual questions presented.” Gilmer v. Interstatel Johnson Lane Corp., 500 U. S. 20, 37 (1991) (Stevens, J., dissenting) (citing cases). The Court has not always confined itself to the set of issues addressed by the parties. See, e. g., Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 93-102, and n. 1 (1998); H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 243-249 (1989); Continental Ill. Nat. Bank & Trust Co. v. Chicago R. I. & P. R. Co., 294 U. S. 648, 667-675 (1935). Here, moreover, limitations on the extent to which principals may be liable in punitive damages for the torts of their agents was the subject of discussion by both the en bane majority and dissent, see 139 F. 3d, at 968; id., at 974 (Tatel, J., dissenting), amicus briefing, see Brief for Chamber of Commerce of the United States as Amicus Curiae 22-27, and substantial questioning at oral argument, see Tr. of Oral Arg. 11-17, 19-24, 49-50, 54-55. Nor did respondent discount the notion that agency principles may place limits on an employer’s vicarious liability for punitive damages. See post, at 552. In fact, respondent advanced the general position “that the higher agency principles, under common law, would apply to punitive damages.” Tr. of Oral Arg. 49. Accordingly, we conclude that these potential limitations on the extent of respondent’s liability are properly considered in the instant case.
The common law has long recognized that agency principles limit vicarious liability for punitive awards. See, e. g., G. Field, Law of Damages §§85-87 (1876); 1 Sedgwick, Damages §378; McCormick, Damages §80; 2 F. Mechem, Law of Agency §§2014-2015 (2d ed. 1914). This is a principle, moreover, that this Court historically has endorsed. See, e. g., Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U. S. 101, 114-115 (1893); The Amiable Nancy, 3 Wheat. 546, 558-559 (1818). Courts of Appeals, too, have relied on these liability limits in interpreting 42 U. S. C. § 1981a. See, e. g., Dudley v. Wal-Mart Stores, Inc., 166 F. 3d 1317, 1322-1323 (CA11 1999); Harris v. L & L Wings, Inc., 132 F. 3d 978, 983-985 (CA4 1997). See also Fitzgerald v. Mountain States Telephone & Telegraph Co., 68 F. 3d 1257, 1263-1264 (CA10 1995) (same in suit under 42 U. S. C. § 1981). But see Deffehbaugh-Williams v. Wal-Mart Stores, Inc., 156 F. 3d 581, 592-594 (CA5 1998), rehearing en banc ordered, 169 F. 3d 215 (1999).
We have observed that, “[i]n express terms, Congress has directed federal courts to interpret Title VII based on agency principles.” Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 754 (1998); see also Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 72 (1986) (noting that, in interpreting Title VII, “Congress wanted courts to look to agency principles for guidance”). Observing the limits on liability that these principles impose is especially important when interpreting the 1991 Act. In promulgating the Act, Congress conspicuously left intact the “limits of employer liability” established in Meritor. Faragher v. Boca Raton, 524 U. S. 775, 804, n. 4 (1998); see also Burlington Industries, Inc., supra, at 763-764 (“[W]e are bound by our holding in Meritor that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment”).
Although jurisdictions disagree over whether and how to limit vicarious liability for punitive damages, see, e. g., 2 J. Ghiardi & J. Kircher, Punitive Damages: Law and Practice §24.01 (1998) (discussing disagreement); 22 Am. Jur. 2d, Damages § 788 (1988) (same), our interpretation of Title YII is informed by “the general common law of agency, rather than... the law of any particular State.” Burlington Industries, Inc., supra, at 754 (internal quotation marks omitted). The common law as codified in the Restatement (Second) of Agency (1957), provides a useful starting point for defining this general common law. See Burlington Industries, Inc., supra, at 755 (“[T]he Restatement... is a useful beginning point for a discussion of general agency principles”); see also Meritor, supra, at 72. The Restatement of Agency places strict limits on the extent to which an agent’s misconduct may be imputed to the principal for purposes of awarding punitive damages:
“Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if:
“(a) the principal authorized the doing and the manner of the act, or
“(b) the agent was unfit and the principal was reckless in employing him, or
“(c) the agent was employed in a managerial capacity and was acting in the seope of employment, or
“(d) the principal or a managerial agent of the principal ratified or approved the act.” Restatement (Second) of Agency, supra, §217 C.
See also Restatement (Second) of Torts §909 (same).
The Restatement, for example, provides that the principal may be liable for punitive damages if it authorizes or ratifies the agent’s tortious act, or if it acts recklessly in employing the malfeasing agent. The Restatement also contemplates liability for punitive awards where an employee serving in a “managerial capacity” committed the wrong while “acting in the scope of employment.” Restatement (Second) of Agency, supra, §217 C; see also Restatement (Second) of Torts, supra, §909 (same). “Unfortunately, no good definition of what constitutes a ‘managerial capacity* has been found,” 2 Ghiardi, Punitive Damages, §24.05, at 14, and determining whether an employee meets this description requires a fact-intensive inquiry, id., §24.05; 1 L. Schlueter & K. Redden, Punitive Damages, § 4.4(B)(2)(a), p. 181 (3d ed. 1995). “In making this determination, the court should review the type of authority that the employer has given to the employee, the amount of discretion that the employee has in what is done and how it is accomplished.” Id., § 4.4(B)(2)(a), at 181. Suffice it to say here that the examples provided in the Restatement of Torts suggest that an employee must be “important,” but perhaps need not be the employer’s “top management, officers, or directors,” to be acting “in a managerial capacity.” Ibid.; see also 2 Ghiardi, supra, §24.05, at 14; Restatement (Second) of Torts, supra, § 909, at 468, Comment b and Illus. 3.
Additional questions arise from the meaning of the “scope of employment” requirement. The Restatement of Agency provides that even intentional torts are within the scope of an agent’s employment if the conduct is “the kind [the employee] is employed to perform,” “occurs substantially within the authorized time and space limits,” and “is actuated, at least in part, by a purpose to serve the” employer. Restatement (Second) of Agency, § 228(1), at 504. According to the Restatement, so long as these rules are satisfied, an employee may be said to act within the scope of employment even if the employee engages in acts “specifically forbidden” by the employer and uses “forbidden means of accomplishing results.” Id., §230, at 511, Comment b; see also Burlington Industries, Inc., 524 U. S., at 756; Keeton, Torts § 70. On this view, even an employer who makes every effort to comply with
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_circuit
|
L
|
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.
GUANTANAMO SUGAR CO. v. HELVERING.
No. 6458.
United States Court of Appeals for the District of Columbia.
Argued April 10, 1936.
Decided May 25, 1936.
David A. Buckley, Jr., and Harvey L. Rabbitt, both of Washington, D. C., and Richard S. Holmes, of New York City, for petitioner.
Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, Robert H. Jackson, Bruce A. Low, J. Louis Monarch, and Harry Marselli, all of Washington, D. C., for respondent.
Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.
GRONER, Associate Justice.
Petitioner, Guantanamo Sugar Company, is a New Jersey corporation organized in 1905. It is engaged in the business of producing and selling raw sugar and owns and operates a number of “sugar estates” in Cuba. At the commencement of its career it issued 40,000 shares of common stock of the par value of $100 each. Ten shares were sold at par for cash. The remaining 39,990 shares were exchanged for a number of sugar estates and 5,630 shares of common stock of Guantanamo Railroad Company. The railroad stock was set up on petitioner’s books at $422,250 ($75 a share). Between 1905 and 1908 petitioner purchased at various times 1,066 additional shares of railroad stock at a total cash cost of $35,069.02. The shares originally and subsequently acquired have never been sold and are still owned by it. The railroad is of standard gauge, running from Guantanamo east to Jamaica and west to Soledad, and is equipped to operate freight and passenger trains. At the present time it runs from 85 to 100 miles and hauls all of petitioner’s products. The book value of its shares of stock as of 1905 was $137 per share. Subsequently another road was built in the same territory, resulting in a division of business and a considerable loss of revenue. After that time the railroad was used by petitioner almost exclusively in the operation of its business and for hauling passengers; and by the end of 1918 petitioner had loaned it approximately a million dollars which is still unpaid.
In 1911 the board of directors of petitioner caused all the shares of stock of the railroad owned by it to be carried on its books at a nominal value of $1, and the sum of $465,457.81, representing their cost, was charged against surplus. That amount was not thereafter included as invested capital in the returns filed by petitioner, but for the years 1918 and 1920 petitioner claimed the right to have its invested capital increased by the amount of this item. The Commissioner refused and was sustained by the Board.
On this review the questions are, first, whether in the circumstances mentioned petitioner is entitled to restore to its invested capital for the years in question the actual cash value, as of the time of acquisition, of the 5,630 shares acquired by it (in exchange) for shares of its own stock; and, second, whether it is also entitled to include in its invested capital $35,-069.02, the actual cost of the 1,066 shares purchased for cash between 1905 and 1908.
The Board held that, before the cost of the railroad stock or any of it could be restored to invested capital, petitioner was obliged to show that the value of the stock had not diminished. We assume the Board meant that the items in question could be added to petitioner’s invested capital account only to the extent of their then value (which the Board considered was $1). On this appeal the government concedes that the ground on which the Board based its conclusion is erroneous, but insists the finding should be sustained because the record shows that the Commissioner had allowed under the head of invested capital an amount largely in excess of the original corporate investment and that this is all petitioner is entitled to ask. But this is neither good reasoning nor is it in accordance with the facts. The record, it is true, shows allowed invested capital in 1918 of approximately $6,000,000 and in 1920 of approximately $7,000,000, but in each year the surplus and undivided profits item allowed, accounted for 50 per cent, or more of this, and the capital stock item was in each year at least a million dollars less than that item at organization; and there is nothing in the record which explains this discrepancy.
We must, therefore, reject the suggestion and look elsewhere for the answer.
The applicable statute is section 326 (a) of the Revenue Act of 1918 (40 Stat. 1057, 1092), and is as follows:
“That as used in this title the term ‘invested > capital’ for any year means * *
“(1) Actual cash bona fide paid in for stock or shares;
“(2) Actual cash value of tangible property, other than cash, bona fide paid in for stock or shares, at the time of such payment, but in no case to exceed the par value of the original stock or shares specifically issued therefor, unless the actual cash value of such tangible property at the time paid in is shown to the satisfaction of the Commissioner to have been clearly and substantially in excess of such par value, in which case such excess shall he treated as paid-in surplus; * * *
“(3) Paid-in or earned surplus and undivided profits; not including surplus and undivided profits earned during the year.”
The applicable regulations are Articles 831, 838, 840, 841, and 842, of Regulations 45. We take the quoted section to mean, as indeed the Commissioner concedes, that petitioner is entitled to have included in its invested capital the value of the property paid in for its own stock not to exceed the par value of the stock issued therefor, plus whatever earned surplus' — as presently construed — may actually have existed at the beginning of the taxable years in question. As we have seen, petitioner at the time of its organization issued and exchanged $4,000,000 of its 'stock for $1,000 in cash and properties worth $3,999,-000. The Commissioner does not question these figures or that the properties were fairly worth the'amount which petitioner paid. Obviously, therefore, the minimum invested capital upon organization was $4,-000,000. In 1911, six years after organization, petitioner debited its surplus account to the extent of $465,457.81, representing the cost to it of the shares of railroad stock, though it continued to own the stock just as it had from the beginning. It is that item which it would restore to invested capital. Of this amount $422,250 represents the original investment, and the remainder the subsequent cash investment, in the stock of the railroad.
We have already said that invested capital is made up of two parts, one the amount paid into the corporation for its stock or shares, either as capital or as paid-in surplus; and, second, surplus and undivided profits subsequently earned and not distributed as dividends. The first is fixed upon incorporation and is not thereafter affected except by a return of part or the whole of it to the stockholders. On the other hand, earned surplus and undivided profits are subject to be diminished by operating deficits, capital impairment, and other like causes. These rules arise out of the language of the statute, the terms of which are clear and unambiguous ; and the construction we adopt is that which, so far as we know, has been universally applied when the question has arisen. In La Belle Iron Works v. United States, 256 U.S. 377, 41 S.Ct. 528, 531, 65 L.Ed. 998, the Supreme Court said that property acquired in consideration of the transfer of the original capital stock of a corporation forms a part of the invested capital of the corporation and is to be taken, in determining irivested capital, then and thereafter at its value at the time of the transaction. “It is clear enough that Congress adopted the basis of ‘invested capital’ measured' according to actual contributions made for stock or shares and actual accessions in the way of surplus, valuing them according to actual and bona fide transactions and by valuations obtain-, ing at the time of acquisition.”
In the later case of Willcuts v. Milton D. Co., 275 U.S. 215, 48 S.Ct. 71, 72 L.Ed. 247, the Supreme Court reaffirmed the rule announced in the Iron Works Case. Other decisions to the same effect are: Ralston Steel Car Co. v. Commissioner (C.C.A. 6th Circuit) 53 F.(2d) 948; Gauley Coal Co. v. Commissioner (C.C.A. 4th Circuit) 23 F.(2d) 574; Rookwood Pottery Co. v. Commissioner (C.C.A. 6th Circuit) 45 F.(2d) 43.
In News Publishing Co. v. Blair, Commissioner, 58 App.D.C. 295, 29 F.(2d) 955, we reached substantially this same conclusion; and the Board of Tax Appeals has also held in numerous cases in accordance with the above. See Appeal of Guarantee Construction Co., 2 B.T.A. 1145; Reading Hardware Co. v. Commissioner, 7 B.T.A. 337.
The effect of all these decisions is that the original investment in a corporation, for the purpose of computing the excess profits tax, remains the same. Subsequent depreciation no more reduces than subsequent appreciation augments the amount. In this view, it is apparent that the value of the shares of stock of the railroad company acquired by petitioner at the time of its organization continues as a part of its invested capital, and this is none the less true because of the action of the directors, for company purposes, in writing down the value of the item. But what has been said as to the original investment in the railroad shares is not equally true of those subsequently purchased, for as to these the reasonable assumption is that they were acquired out of undivided profits; and in such case the regulations prescribe, and we think correctly, that the item can be restored to surplus only by taking it subject to any depreciation occurring since the investment was made. See Article 842, supra, and see also Willcuts v. Milton D. Company, supra.
Applying these rules to the instant case, it is clear that the original investment of $422,250 which petitioner made at organization is part of the permanent invested capital; and the action of petitioner in charging it to surplus does not prevent its restoration. It should, therefore, have been included in the item of fixed invested capital. To this should be added surplus and undivided profits, in which account the later investment in the shares of the railroad belongs, taken at its present value for the years in question. That this simple rule was ignored in the instant case abundantly appears; and in the circumstances it seems to us perfectly clear that the case should be returned to the Board to ascertain, first, the amount of the •original capital investment of petitioner, less any amount thereof, if any, which may have been returned to the stockholders, and to add thereto all earned surplus and undivided profits, less so much thereof as may have been lost by operating deficits or other like causes or as shall be required to make good the impairment, if any, in the original invested capital. Willcuts v. Milton D. Co., supra. The sum of these two items is the invested capital on which to compute taxation for the years in question.
Remanded to the Board of Tax Appeals with instructions to grant a rehearing and to proceed thereafter in accordance with this opinion.
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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sc_caseorigin
|
042
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
UNITED STATES v. SELLS ENGINEERING, INC., et al.
No. 81-1032.
Argued March 2, 1983 —
Decided June 30, 1983
Douglas Letter argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Getter, Joshua I. Schwartz, and Leonard Schaitman.
Arlington Ray Robbins argued the cause for respondents. With him on the brief were Michael E. Cahill and David P. Cumow.
Briefs of amici curiae urging affirmance were filed by Morris Harrell and Richard L. Aynes for the American Bar Association; by Thomas E. Holliday, Fred Okrand, Charles S. Sims, and Burt Neubome for the American Civil Liberties Union Foundation et al.; by Erwin N. Griswold and Otis M. Smith for General Motors Corp.; and by Thomas J. Donnelly for Miller Brewing Co.
Patrick Henry, pro se, Mark D. Cohen, and James J. O’Rourke filed a brief for the District Attorney of Suffolk County, New York, as amicus curiae.
Justice Brennan
delivered the opinion of the Court.
The question in this case is under what conditions attorneys for the Civil Division of the Justice Department, their paralegal and secretarial staff, and all other necessary assistants, may obtain access to grand jury materials, compiled with the assistance and knowledge of other Justice Department attorneys, for the purpose of preparing and pursuing a civil suit. We hold that such access is permissible only when the Government moves for court-ordered disclosure under Federal Rule of Criminal Procedure 6(e)(3)(C)(i) and makes the showing of particularized need required by that Rule.
Respondents Peter A. Sells and Fred R. Witte were officers of respondent Sells Engineering, Inc. That company had contracts with the United States Navy to produce airborne electronic devices designed to interfere with enemy radar systems. In 1974, a Special Agent of the Internal Revenue Service began a combined criminal and civil administrative investigation of respondents. The Agent issued administrative summonses for certain corporate records of Sells Engineering. When the corporation refused to comply, the Agent obtained a District Court order enforcing the summonses. Enforcement was stayed, however, pending appeal.
While the enforcement case was pending in the Court of Appeals, a federal grand jury was convened to investigate charges of criminal fraud on the Navy and of evasion of federal income taxes. The grand jury subpoenaed, and respondents produced, many of the same materials that were the subject of the IRS administrative summonses. The grand jury indicted all three respondents on two counts of conspiracy to defraud the United States and nine counts of tax fraud. Respondents moved to dismiss the indictment, alleging grand jury misuse for civil purposes. Before the motion was decided, however, the parties reached a plea bargain. The individual respondents each pleaded guilty to one count of conspiracy to defraud the Government by obstructing an IRS investigation. All other counts were dismissed, and respondents withdrew their charges of grand jury misuse.
Thereafter, the Government moved for disclosure of all grand jury materials to attorneys in the Justice Department’s Civil Division, their paralegal and secretarial assistants, and certain Defense Department experts, for use in preparing and conducting a possible civil suit against respondents under the False Claims Act, 31 U. S. C. §231 et seq Respondents opposed the disclosure, renewing their allegations of grand jury misuse. The District Court granted the requested disclosure, concluding that attorneys in the Civil Division are entitled to disclosure as a matter of right under Rule 6(e)(3)(A)(i). The court also stated that disclosure to Civil Division attorneys and their nonattorney assistants was warranted because the Government had shown particularized need for disclosure. The Court of Appeals vacated and remanded, holding that Civil Division attorneys could obtain disclosure only by showing particularized need under Rule 6(e)(3)(C)(i), and that the District Court had not applied a correct standard of particularized need. In re Grand Jury Investigation No. 78-184 (Sells, Inc.), 642 F. 2d 1184 (CA9 1981). We granted certiorari, 456 U. S. 960 (1982). We now affirm.
H
>
The grand jury has always occupied a high place as an instrument of justice in our system of criminal law — so much so that it is enshrined in the Constitution. Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, 399 (1959); Costello v. United States, 350 U. S. 359, 361-362 (1956). It serves the “dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.” Branzburg v. Hayes, 408 U. S. 665, 686-687 (1972) (footnote omitted). It has always been extended extraordinary powers of investigation and great responsibility for directing its own efforts:
“Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. Tt is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.’ ” United States v. Calandra, 414 U. S. 338, 343 (1974), quoting Blair v. United States, 250 U. S. 273, 282 (1919).
These broad powers are necessary to permit the grand jury to carry out both parts of its dual function. Without thorough and effective investigation, the grand jury would be unable either to ferret out crimes deserving of prosecution, or to screen out charges not warranting prosecution. Branzburg, supra, at 688; Calandra, supra, at 343. See also United States v. Dionisio, 410 U. S. 1, 12-13 (1973); United States v. Johnson, 319 U. S. 503, 510-512 (1943); Hale v. Henkel, 201 U. S. 43, 59-66 (1906).
The same concern for the grand jury’s dual function underlies the “long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts.” United States v. Procter & Gamble Co., 356 U. S. 677, 681 (1958) (footnote omitted).
“We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand j urors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U. S. 211, 218-219 (1979) (footnotes and citation omitted).
Grand jury secrecy, then, is “as important for the protection of the innocent as for the pursuit of the guilty.” Johnson, supra, at 513. Both Congress and this Court have consistently stood ready to defend it against unwarranted intrusion. In the absence of a clear indication in a statute or Rule, we must always be reluctant to conclude that a breach of this secrecy has been authorized. See Illinois v. Abbott & Associates, Inc., 460 U. S. 557, 572-573 (1983).
B
Rule 6(e) of the Federal Rules of Criminal Procedure codifies the traditional rule of grand jury secrecy. Paragraph 6(e)(2) provides that grand jurors, Government attorneys and their assistants, and other personnel attached to the grand jury are forbidden to disclose matters occurring before the grand jury. Witnesses are not under the prohibition unless they also happen to fit into one of the enumerated classes. Paragraph 6(e)(3) sets forth four exceptions to this nondisclosure rule.
Subparagraph 6(e)(3)(A) contains two authorizations for disclosure as a matter of course, without any court order. First, under subparagraph 6(e)(3)(A)(i), disclosure may be made without a court order to “an attorney for the government for use in the performance of such attorney’s duty” (referred to hereinafter as “(A)(i) disclosure”). “Attorney for the government” is defined in Rule 54(c) in such broad terms as potentially to include virtually every attorney in the Department of Justice. Second, under subparagraph 6(e)(3)(A)(ii), grand jury materials may likewise be provided to “government personnel... [who] assist an attorney for the government in the performance of such attorney’s duty to enforce federal criminal law” (“(A)(ii) disclosure”). Subparagraph 6(e)(3)(B) further regulates (A)(ii) disclosure, forbidding use of grand jury materials by “government personnel” for any purpose other than assisting an attorney for the Government in his enforcement of criminal law, and requiring that the names of such personnel be provided to the district court.
Subparagraph 6(e)(3)(C) also authorizes courts to order disclosure. Under subparagraph 6(e)(3)(C)(i), a court may order disclosure “preliminarily to or in connection with a judicial proceeding” (a “(C)(i) order”). Under subparagraph 6(e)(3)(C)(ii), a court may order disclosure under certain conditions at the request of a defendant. See also n. 7, swpra.
The main issue in this case is whether attorneys in the Justice Department may obtain automatic (A)(i) disclosure of grand jury materials for use in a civil suit, or whether they must seek a (C)(i) court order for access. If a (C)(i) order is necessary, we must address the dependent question of what standards should govern issuance of the order.
I — I HH HH
The Government contends that all attorneys in the Justice Department qualify for automatic disclosure of grand jury materials under (A)(i), regardless of the nature of the litigation in which they intend to use the materials. We hold that (A)(i) disclosure is limited to use by those attorneys who conduct the criminal matters to which the materials pertain. This conclusion is mandated by the general purposes and policies of grand jury secrecy, by the limited policy reasons why Government attorneys are granted access to grand jury materials for criminal use, and by the legislative history of Rule 6(e).
A
The Government correctly contends that attorneys for the Civil Division of the Justice Department are within the class of “attorneys for the government” to whom (A)(i) allows disclosure without a court order. Rule 54(c) defines the phrase expansively, to include “authorized assistants] of the Attorney General”; 28 U. S. C. § 515(a) provides that the Attorney General may direct any attorney employed by the Department to conduct “any kind of legal proceeding, civil or criminal, including grand jury proceedings... See also § 518(b). In short, as far as Rules 6 and 54 are concerned, it is immaterial that certain attorneys happen to be assigned to a unit called the Civil Division, or that their usual duties involve only civil cases. If, for example, the Attorney General (for whatever reason) were to detail a Civil Division attorney to conduct a criminal grand jury investigation, nothing in Rule 6 would prevent that attorney from doing so; he need not secure a transfer out of the Civil Division.
It does not follow, however, that any Justice Department attorney is free to rummage through the records of any grand jury in the country, simply by right of office. Disclosure under (A)(i) is permitted only “in the performance of such attorney’s duty.” The heart of the primary issue in this case is whether performance of duty, within the meaning of (A)(i), includes preparation and litigation of a civil suit by a Justice Department attorney who had no part in conducting the related criminal prosecution.
Given the strong historic policy of preserving grand jury secrecy, one might wonder why Government attorneys are given any automatic access at all. The draftsmen of the original Rule 6 provided the answer:
“Government attorneys are entitled to disclosure of grand jury proceedings, other than the deliberations and the votes of the jurors, inasmuch as they may be present in the grand jury room during the presentation of evidence. The rule continues this practice.” Advisory Committee’s Notes on Federal Rule of Criminal Procedure 6(e), 18 U. S. C. App., p. 1411.
This is potent evidence that Rule 6(e) was never intended to grant free access to grand jury materials to attorneys not working on the criminal matters to which the materials pertain. The Advisory Committee’s explanation strongly suggests that automatic access to grand jury materials is available only to those attorneys for the Government who would be entitled to appear before the grand jury. But Government attorneys are allowed into grand jury rooms, not for the general and multifarious purposes of the Department of Justice, but because both the grand jury’s functions and their own prosecutorial duties require it. As the Advisory Committee suggested, the same reasoning applies to disclosure of grand jury materials outside the grand jury room.
The purpose of the grand jury requires that it remain free, within constitutional and statutory limits, to operate “independently of either prosecuting attorney or judge.” Stirone v. United States, 361 U. S. 212, 218 (1960) (footnote omitted). Nevertheless, a modern grand jury would be much less effective without the assistance of the prosecutor’s office and the investigative resources it commands. The prosecutor ordinarily brings matters to the attention of the grand jury and gathers the evidence required for the jury’s consideration. Although the grand jury may itself decide to investigate a matter or to seek certain evidence, it depends largely on the prosecutor’s office to secure the evidence or witnesses it requires. The prosecutor also advises the lay jury on the applicable law. The prosecutor in turn needs to know what transpires before the grand jury in order to perform his own duty properly. If he considers that the law and the admissible evidence will not support a conviction, he can be expected to advise the grand jury not to indict. He must also examine indictments, and the basis for their issuance, to determine whether it is in the interests of justice to proceed with prosecution.
None of these considerations, however, provides any support for breaching grand jury secrecy in favor of Government attorneys other than 'prosecutors — either by allowing them into the grand jury room, or by granting them uncontrolled access to grand jury materials. An attorney with only civil duties lacks both the prosecutor’s special role in supporting the grand jury, and the prosecutor’s own crucial need to know what occurs before the grand jury.
Of course, it would be of substantial help to a Justice Department civil attorney if he had free access to a storehouse of evidence compiled by a grand jury; but that is of a different order from the prosecutor’s need for access. The civil lawyer’s need is ordinarily nothing more than a matter of saving time and expense. The same argument could be made for access on behalf of any lawyer in another Government agency, or indeed, in private practice. We have consistently rejected the argument that such savings can justify a breach of grand jury secrecy. E. g., Procter & Gamble, 356 U. S., at 682-683; Smith v. United States, 423 U. S. 1303, 1304 (1975) (Douglas, J., in chambers); see also Abbott, 460 U. S., at 565-573. In most cases, the same evidence that could be obtained from the grand jury will be available through ordinary discovery or other routine avenues of investigation. If, in a particular case, ordinary discovery is insufficient for some reason, the Government may request disclosure under a (C)(i) court order. See Part IV, infra.
Not only is disclosure for civil use unjustified by the considerations supporting prosecutorial access, but also it threatens to do affirmative mischief. The problem is threefold.
First, disclosure to Government bodies raises much the same concerns that underlie the rule of secrecy in other contexts. Not only does disclosure increase the number of persons to whom the information is available (thereby increasing the risk of inadvertent or illegal release to others), but also it renders considerably more concrete the threat to the willingness of witnesses to come forward and to testify fully and candidly. If a witness knows or fears that his testimony before the grand jury will be routinely available for use in governmental civil litigation or administrative action, he may well be less willing to speak for fear that he will get himself into trouble in some other forum. Cf. Pillsbury Co. v. Conboy, 459 U. S. 248, 263, n. 23 (1983).
Second, because the Government takes an active part in the activities of the grand jury, disclosure to Government attorneys for civil use poses a significant threat to the integrity of the grand jury itself. If prosecutors in a given case knew that their colleagues would be free to use the materials generated by the grand jury for a civil case, they might be tempted to manipulate the grand jury’s powerful investigative tools to root out additional evidence useful in the civil suit, or even to start or continue a grand jury inquiry where no criminal prosecution seemed likely. Any such use of grand jury proceedings to elicit evidence for use in a civil case is improper per se. Procter & Gamble, supra, at 683-684. We do not mean to impugn the professional characters of Justice Department lawyers in general; nor do we express any view on the allegations of misuse that have been made in this case, see n. 36, infra. Our concern is based less on any belief that grand jury misuse is in fact widespread than on our concern that, if and when it does occur, it would often be very difficult to detect and prove. Moreover, as the legislative history discussed infra, Part III-B, shows, our concern over possible misappropriation of the grand jury itself was shared by Congress when it enacted the present version of Rule 6(e). Such a potential for misuse should not be allowed absent a clear mandate in the law.
Third, use of grand jury materials by Government agencies in civil or administrative settings threatens to subvert the limitations applied outside the grand jury context on the Government’s powers of discovery and investigation. While there are some limits on the investigative powers of the grand jury, there are few if any other forums- in which a governmental body has such relatively unregulated power to compel other persons to divulge information or produce evidence. Other agencies, both within and without the Justice Department, operate under specific and detailed statutes, rules, or regulations conferring only limited authority to require citizens to testify or produce evidence. Some agencies have been granted special statutory powers to obtain information and require testimony in pursuance of their duties. Others (including the Civil Division) are relegated to the usual course of discovery under the Federal Rules of Civil Procedure. In either case, the limitations imposed on investigation and discovery exist for sound reasons — ranging from fundamental fairness to concern about burdensomeness and intrusiveness. If Government litigators or investigators in civil matters enjoyed unlimited access to grand jury material, though, there would be little reason for them to resort to their usual, more limited avenues of investigation. To allow these agencies to circumvent their usual methods of discovery would not only subvert the limitations and procedural requirements built into those methods, but also would grant to the Government a virtual ex parte form of discovery, from which its civil litigation opponents are excluded unless they make a strong showing of particularized need. In civil litigation as in criminal, “it is rarely justifiable for the [Government] to have exclusive access to a storehouse of relevant fact.” Dennis v. United States, 384 U. S. 855, 873 (1966) (footnote omitted). We are reluctant to conclude that the draftsmen of Rule 6 intended so remarkable a result.
In short, if grand juries are to be granted extraordinary powers of investigation because of the difficulty and importance of their task, the use of those powers ought to be limited as far as reasonably possible to the accomplishment of the task. The policies of Rule 6 require that any disclosure to attorneys other than prosecutors be judicially supervised rather than automatic.
B
The Government argues that its reading of Rule 6 is compelled by a textual comparison of subparagraph 6(e)(3)(A)(i) with subparagraph 6(e)(3)(A)(ii). It points out that the former restricts a Government attorney’s use of grand jury materials to “the performance of such attorney’s duty,” while the latter refers more specifically to “performance of such attorney’s duty to enforce federal criminal law” (emphasis added). The inclusion in (A)(ii) of an express limitation to criminal matters, and the absence of that limitation in the otherwise similar language of (A)(i), the Government argues, show that Congress intended to place the limitation to criminal matters on (A)(ii) disclosure but not on (A)(i) disclosure. The argument is admittedly a plausible one. If we had nothing more to go on than the bare text of the Rule, and if the subject matter at hand were something less sensitive than grand jury secrecy, we might well adopt that reasoning. The argument is not so compelling, nor the language so plain, however, as to overcome the strong arguments to the contrary drawn both from policy, supra, Part III-A, and from legislative history.
It is material in this connection that the two subparagraphs are not of contemporaneous origin. The present (A)(i) language has been in the Rule since its inception in 1946; the (A)(ii) provision was added by Congress in 1977. The Government’s argument, at base, is that when Congress added the (A)(ii) provision containing an express limitation to criminal use, but did not add a similar limitation to (A)(i), it must have intended that no criminal-use limitation be applied to (A)(i) disclosure. The legislative history, although of less than perfect clarity, leads to the contrary conclusion. It appears instead that when Congress included the criminal-use limitation in the new (A)(ii), it was merely making explicit what it believed to be already implicit in the existing (A)(i) language.
Rule 6(e), as it stood from 1946 to 1977, contained no provision for access to grand jury materials by nonattomeys assisting Government attorneys. The only provision for automatic access was one substantially the same as the language presently in (A)(i): “Disclosure... may be made to... the attorney[s] for the government for use in the performance of [their] dut[ies].” This became something of a problem in practice, because Justice Department attorneys found that they often needed active assistance from outside personnel— not only investigators from the Federal Bureau of Investigation, IRS, and other law enforcement agencies, but also accountants, handwriting experts, and other persons with special skills. Hence, despite the seemingly clear prohibition of the Rule, it became common in some Districts for nonattorneys to be shown grand jury materials. This practice sparked some controversy and litigation.
Accordingly, when in 1976 this Court transmitted to the Congress several proposed amendments to the Federal Rules of Criminal Procedure, 425 U. S. 1159, a proposal was included to add one sentence to Rule 6(e), immediately following the provision for disclosure to attorneys for the Government:
“For purposes of [Rule 6(e)], ‘attorneys for the government’ includes those enumerated in Rule 54(c); it also includes such other government personnel as are necessary to assist the attorneys for the government in the performance of their duties.” 425 U. S., at 1161.
The accompanying Notes of the Advisory Committee on Rules, 18 U. S. C. App., p. 1024 (1976 ed., Supp. V), explained that the amendment was “designed to facilitate an increasing need, on the part of government attorneys, to make use of outside expertise in complex litigation.” Ibid. The Committee noted, however, that under its proposal, disclosure to nonattorneys would be “subject to the qualification that the matters disclosed be used only for the purposes of the grand jury investigation.” Id., at 1025 (emphasis added). Yet there was no express language in the proposed Rule clearly imposing this criminal-use limitation; the only limitation on use of grand jury materials was the double reference to “the performance of [Government attorneys’] duties.” It appears, then, that the Advisory Committee took that phrase to mean that use of grand jury materials was limited to criminal matters, absent a court order allowing civil use — a construction that would apply equally to Justice Department attorneys and their nonattomey assistants.
The proposed amendment to Rule 6(e) met a mixed reception in Congress. Congress first acted to postpone the effective date of the amendment to Rule 6(e) so that it might study the proposal. The House, after hearings, voted to disapprove the amendment. Members of the responsible Subcommittee stated
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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198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
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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:
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songer_genresp1
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G
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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.
Clement BECKMAN, Joseph Harbauer, George Reid, Anthony Rissi, John Gvazdinskas and Russell Schroeder, Plaintiffs-Appellees, v. LOCAL NO. 46 INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, Thomas Crowley, both individually, and as President of said Union Local No. 46, Forrest English, individually and as Business Representative, Financial Secretary and Treasurer of said Union Local No. 46, Charles R. Smith, Lee Spudich and Don English, individually and as Election Judges for said Union Local No. 46, Defendants-Appellants.
No. 13935.
United States Court of Appeals Seventh Circuit.
March 14, 1963.
William K. Cavanagh, Springfield, Ill., for appellants.
Nelson O. Howarth, Springfield, Ill., for appellees.
Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges.
KNOCH, Circuit Judge.
Defendants-appellants Local No. 46 International Association of Bridge, Structural and Ornamental Iron Workers, hereinafter called the “Union”; Thomas Crowley, both individually and as President of said Union Local No. 46, Forrest English, individually and as Business Representative, Financial Secretary and Treasurer of said Union Local No. 46; Charles R. Smith, Lee Spudich and Don English, individually and as election judges for said Union Local No. 46; have taken this appeal from a preliminary injunction granted in the above entitled matter by the District Court.
No testimony was submitted in the District Court. The sole facts before that Court, and before us, are those alleged in the amended complaint of the plaintiffs-appellees, Clement Beckman, Joseph Harbauer, George Reid, Anthony Risse, John Gvazdinskas and Russell Schroeder, all members of the Union, and in the supporting affidavits filed on their behalf. Defendants did not move to strike the amended complaint or for summary judgment in their favor. The only answer on file was that filed in response to the original complaint. No answer was filed to the amended complaint, the allegations of which must be taken as true for the purposes of this appeal.
Plaintiffs complain that they were denied their right, as members, to vote in a Union election, in violation of Title I, § 101(a) (1), Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. § 411 et seq.). They seek relief under § 412 which provides:
“Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.”
The amended complaint, and the supporting affidavits, allege further that (1) the individual defendants are the present officers and were seeking re-election to the same offices; (2) although there were about 250 eligible member-voters, defendants caused 750 official ballots to be printed and made no accounting for the surplus; (3) after declaring the voting closed, election judge Don English seized and concealed the official ballot box for a sufficiently long period to allow tampering or substitution; (4) efforts to investigate this concealment of the ballot box were in the meantime prevented by threats of bodily harm made by Forrest English who brandished a loaded firearm; (5) the ballot box later produced by Don English differed from the official ballot box in that it was unlocked and lacked a crayon mark surreptitiously placed on the official ballot, box for identification; and (6) the ballot box which Don English produced was. locked and taken into the custody of the Chief of Police of Springfield, Illinois.
The District Court granted a preliminary injunction restraining the removal of the ballot box or its contents from the custody of the Chief of Police and restraining the counting of the purported ballots contained in that box. Defendants argue that the District Court lacked jurisdiction either to restrain them from proceeding to count the ballots, or to order- a new election; that the sole method of redress open to plaintiffs is that provided in Title IV, § 402 of the Act (29 U.S.C. § 482) by way of appeal to the Secretary of Labor; that no right guaranteed by Title I, § 101, was allegedly violated; that plaintiffs were required to exhaust their administrative internal remedies before seeking redress from the Secretary of Labor or from the District Court; that there has been no showing of irreparable harm or lack of adequate remedy at law; and that absence of diversity of citizenship deprives the District Court of jurisdiction over the subject matter.
We are advised that this is a case of first impression. Neither counsel, the District Court, nor this Court has found a reported case interpreting the meaning of the phrase “equal rights * * * to vote” as set out in 29 U.S.C. § 411(a) d).
The District Judge indicated in his opinion that he agreed with defendants’ position that if the right to vote, as guaranteed by 29 U.S.C. § 411(a) (1), was preserved, and there was here a mere infirmity or irregularity in the conduct of the election (not tantamount to denial of the right to vote) then a Title IV question would be presented. Plaintiffs, of course, must ultimately prove their allegations. Those allegations, however, do provide sufficient bases to warrant the District Court’s action in granting the preliminary injunction. The amended complaint does state a claim for violation of rights protected by the “right-to-vote” clause of the Act. The District Court had jurisdiction to entertain this matter. We find no clear or convincing evidence of error. We agree with District Judge Mercer that:
“[T]he facts of the matter cannot be known prior to a hearing upon the merits of the complaint, but the allegations of this complaint support the observation that the disappearance incident may well have led to the removal of ballots cast by the members from the official box or the substitution of another box for the official box. In either event, the rank and file members of the union would be denied the right to vote as surely as if the doors of the union hall had been barred against them while the balloting was conducted inside the hall. Neither reason nor logic supports the suggestion that plaintiffs must now await the completion of the election and the counting of the purported ballots and then seek their remedy under Title IV. I think the statutory scheme of Title I would be defeated if the Act must be- so construed, and applied.”
The order of the District Court is affirmed.
Affirmed.
. This name sometimes spelled Rissi and sometimes Risse.
. Defendants incidentally contend that nothing is gained by the injunction issued herein because the incumbent officials continue in office until the disposition of any complaint concerning an election irregularity under § 402 of the Act. (29-U.S.C. § 482.)
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_respond2_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 second 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.
Richard I. KRODEL, Appellant, v. John J. HOUGHTALING et al., Appellees.
No. 72-1094.
United States Court of Appeals, Fourth Circuit.
Oct. 26, 1972.
Richard I. Krodel, pro se.
W. W. Koontz, Alexandria, Va., for appellees.
Before HAYNSWORTH, Chief Judge, SOBELOFF, Senior Circuit Judge, and FIELD, Circuit Judge.
PER CURIAM.
Plaintiff appellant sued the defendants for malicious interference with his contract rights, and on this appeal challenges four rulings of the district court: (1) denial of plaintiff’s motion for a jury trial, (2) denial of his motion for a continuance, (3) dismissal of the action for lack of prosecution, and (4) denial of plaintiff’s motion for a new trial.
Although the Federal Rules of Civil Procedure preserve the right of trial by jury, Fed.R.Civ.P. 38(a), a timely demand for a jury trial must be filed. Fed.R.Civ.P. 38(b), (d). Since the plaintiff failed to file such a demand, the district court properly denied the motion for a jury trial.
The granting of a continuance is a matter which lies within the sound discretion of the trial court, and the district court’s ruling on such motion will not be disturbed absent a showing of abuse of discretion. Montgomery v. Commissioner of Internal Revenue, 367 F.2d 917 (9 Cir. 1966). The plaintiff sought a continuance to enable him to contact material witnesses, but the record reveals that he had neither interviewed nor subpoenaed any of these individuals. The record further indicates that plaintiff knew nothing of the testimony he expected to elicit from these witnesses, and under these circumstances it is manifestly clear that the district judge did not abuse his discretion in denying the motion for a continuance.
District courts have “sound judicial discretion” to dismiss an action for “plaintiff’s failure to prosecute it with reasonable diligence * * Timmons v. United States, 194 F.2d 357 (4 Cir. 1952). The plaintiff had ample opportunity to develop evidence in support of his case, but he neither interviewed not subpoenaed witnesses whose whereabouts he knew. Furthermore, the plaintiff himself declined to testify. The district court’s dismissal of the action finds strong support in the record and was well within the court’s discretion.
The decision whether to grant or deny a new trial is also a discretionary matter with the trial court. Hopkins v. Coen, 431 F.2d 1055 (6 Cir. 1970); United States for Use and Benefit of Weyerhaeuser Co. v. Bucon Construction Company, 430 F.2d 420 (5 Cir. 1970). In his motion for a new trial the plaintiff asserted that he had discovered new evidence and that he had been prejudiced by reason of bias on the part of the trial judge. However, the plaintiff refused to disclose his newly discovered evidence to the court, implying that he feared such disclosure might result in intimidation of his material witnesses. This conduct on the part of the plaintiff made it impossible for the district court to appraise the alleged new evidence as a ground for granting a new trial. The plaintiff’s contention that the trial court was biased finds no support whatever in the record. Accordingly, we find that the district court acted properly in denying the motion for a new trial.
Finding no error in the challenged rulings, the action of the district court is affirmed.
Affirmed.
Question: This question concerns the second 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:
|
sc_lcdisagreement
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
BEGIER, TRUSTEE v. INTERNAL REVENUE SERVICE
No. 89-393.
Argued March 27, 1990
Decided June 4, 1990
Marshall, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Blackmun, Stevens, O’Connor, and Kennedy, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, post, p. 67.
Paul J. Winterhalter argued the cause and filed a brief for petitioner.
Brian J. Martin argued the cause for respondent. With him on the briefs were Solicitor General Starr, Assistant Attorney General Peterson, Deputy Solicitor General Wallace, and Gary D. Gray.
Justice Marshall
delivered the opinion of the Court.
This case presents the question whether a trustee in bankruptcy may “avoid” (i. e., recover) from the Internal Revenue Service (IRS) payments of certain withholding and excise taxes that the debtor made before it filed for bankruptcy. We hold that the funds paid here were not the property of the debtor prior to payment; instead, they were held in trust by the debtor for the IRS. We accordingly conclude that the trustee may not recover the funds.
I
American International Airways, Inc. (AIA), was a commercial airline. As an employer, AIA was required to withhold federal income taxes and to collect Federal Insurance Contributions Act (FICA) taxes from its employees’ wages. 26 U. S. C. § 3402(a) (income taxes); § 3102(a) (FICA taxes). As an airline, it was required to collect excise taxes from its customers for payment to the IRS. § 4291. Because the amount of these taxes is “held to be a special fund in trust for the United States,” § 7501, they are often called “trust-fund taxes.” See, e. g., Slodov v. United States, 436 U. S. 238, 241 (1978). By early 1984, AIA had fallen behind in its payments of its trust-fund taxes to the Government. In February of that year, the IRS ordered AIA to deposit all trust-fund taxes it collected thereafter into a separate bank account. AIA established the account, but did not deposit funds sufficient to cover the entire amount of its trust-fund tax obligations. It nonetheless remained current on these obligations through June 1984, paying the IRS $695,000 from the separate bank account and $946,434 from its general operating funds. AIA and the IRS agreed that all of these payments would be allocated to specific trust-fund tax obligations.
On July 19, 1984, AIA petitioned for relief from its creditors under Chapter 11 of the Bankruptcy Code, 11 U. S. C. § 1101 et seq. (1982 ed.). AIA unsuccessfully operated as a debtor in possession for three months. Accordingly, on September 19, the Bankruptcy Court appointed petitioner Harry P. Begier, Jr., trustee, and a plan of liquidation in Chapter 11 was confirmed. Among the powers of a trustee is the power under § 547(b) to avoid certain payments made by the debtor that would “enabl[e] a creditor to receive payment of a greater percentage of his claim against the debtor than he would have received if the transfer had not been made and he had participated in the distribution of the assets of the bankrupt estate.” H. R. Rep. No. 95-595, p. 177 (1977). Seeking to exercise his avoidance power, Begier filed an adversary action against the Government to recover the entire amount that AIA had paid the IRS for trust-fund taxes during the 90 days before the bankruptcy filing.
The Bankruptcy Court found for the Government in part and for the trustee in part. In re American International Airways, Inc., 83 B. R. 324 (ED Pa. 1988). It refused to permit the trustee to recover any of the money AIA had paid out of the separate account on the theory that AIA had held that money in trust for the IRS. Id., at 327. It allowed the trustee to avoid most of the payments that AIA had made out of its general accounts, however, holding that “only where a tax trust fund is actually established by the debtor and the taxing authority is able to trace funds segregated by the debtor in a trust account established for the purpose of paying the taxes in question would we conclude that such funds are not property of the debtor’s estate.” Id., at 329. The District Court affirmed. App. to Pet. for Cert. A-22-A-26. On appeal by the Government, the Third Circuit reversed, holding that any prepetition payment of trust-fund taxes is a payment of funds that are not the debtor’s property and that such a payment is therefore not an avoidable preference. 878 F. 2d 762 (1989). We granted certiorari, 493 U. S. 1017 (1990), and we now affirm.
H
>
Equality of distribution among creditors is a central policy of the Bankruptcy Code. According to that policy, creditors of equal priority should receive pro rata shares of the debt-or’s property. See, e. g., 11 U. S. C. § 726(b) (1982 ed.); H. R. Rep. No. 95-595, supra, at 177-178. Section 547(b) furthers this policy by permitting a trustee in bankruptcy to avoid certain preferential payments made before the debtor files for bankruptcy. This mechanism prevents the debtor from favoring one creditor over others by transferring property shortly before filing for bankruptcy. Of course, if the debtor transfers property that would not have been available for distribution to his creditors in a bankruptcy proceeding, the policy behind the avoidance power is not implicated. The reach of § 547(b)’s avoidance power is therefore limited to transfers of “property of the debtor.”
The Bankruptcy Code does not define “property of the debtor.” Because the purpose of the avoidance provision is to preserve the property includable within the bankruptcy estate—the property available for distribution to creditors — “property of the debtor” subject to the preferential transfer provision is best understood as that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings. For guidance, then, we must turn to § 541, which delineates the scope of “property of the estate” and serves as the postpetition analog to § 547(b)’s “property of the debtor.”
Section 541(a)(1) provides that the “property of the estate” includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” Section 541(d) provides:
“Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest . . . becomes property of the estate under subsection (a) of this section only to the extent of the debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold.”
Because the debtor does not own an equitable interest in property he holds in trust for another, that interest is not “property of the estate.” Nor is such an equitable interest “property of the debtor” for purposes of § 547(b). As the parties agree, then, the issue in this case is whether the money AIA transferred from its general operating accounts to the IRS was property that AIA had held in trust for the IRS.
B
We begin with the language of 26 U. S. C. § 7501, the Internal Revenue Code’s trust-fund tax provision: “Whenever any person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States.” The statutory trust extends, then, only to “the amount of tax so collected or withheld.” Begier argues that a trust-fund tax is not “collected or withheld” until specific funds are either sent to the IRS with the relevant return or placed in a segregated fund. AIA neither put the funds paid from its general operating accounts in a separate account nor paid them to the IRS before the beginning of the preference period. Begier therefore contends that no trust was ever created with respect to those funds and that the funds paid to the IRS were therefore property of the debtor.
We disagree. The Internal Revenue Code directs “every person receiving any payment for facilities or services” subject to excise taxes to “collect the amount of the tax from the person making such payment.” § 4291. It also requires that an employer “collec[t]” FICA taxes from its employees “by deducting the amount of the tax from the wages as and when paid.” § 3102(a) (emphasis added). Both provisions make clear that the act of “collecting” occurs at the time of payment—the recipient’s payment for the service in the case of excise taxes and the employer’s payment of wages in the case of FICA taxes. The mere fact that AIA neither placed the taxes it collected in a segregated fund nor paid them to the IRS does not somehow mean that AIA never collected the taxes in the first place.
The same analysis applies to taxes the Internal Revenue Code requires that employers “withhold.” Section 3402(a) (1) requires that “every employer making payment of wages shall deduct and withhold upon such wages [the employee’s federal income tax].” (Emphasis added.) Withholding thus occurs at the time of payment to the employee of his net wages. S. Rep. No. 95-1106, p. 33 (1978) (“[A]ssume that a debtor owes an employee $100 for salary on which there is required withholding of $20. If the debtor paid the employee $80, there has been $20 withheld. If, instead, the debtor paid the employee $85, there has been withholding of $15 (which is not property of the debtor’s estate in bankruptcy)”). See Slodov, 436 U. S., at 243 (stating that “[t]here is no general requirement that the withheld sums be segregated from the employer’s general funds,” and thereby necessarily implying that the sums are “withheld” whether or not segregated). The common meaning of “withholding” supports our interpretation. See Webster’s Third New International Dictionary 2627 (1981) (defining “withholding” to mean “the act or procedure of deducting a tax payment from income at the source”) (emphasis added).
Our reading of § 7501 is reinforced by § 7512, which permits the IRS, upon proper notice, to require a taxpayer who has failed timely “to collect, truthfully account for, or pay over [trust-fund taxes],” or who has failed timely “to make deposits, payments, or returns of such tax,” § 7512(a)(1), to “deposit such amount in a separate account in a bank . . . and . . . keep the amount of such taxes in such account until payment over to the United States,” § 7512(b). If we were to read § 7501 to mandate segregation as a prerequisite to the creation of the trust, § 7512’s requirement that funds be segregated in special and limited circumstances would become superfluous. Moreover, petitioner’s suggestion that we read a segregation requirement into § 7501 would mean that an employer could avoid the creation of a trust simply by refusing to segregate. Nothing in § 7501 indicates, however, that Congress wanted the IRS to be protected only insofar as dictated by the debtor’s whim. We conclude, therefore, that AIA created a trust within the meaning of § 7501 at the moment the relevant payments (from customers to AIA for excise taxes and from AIA to its employees for FICA and income taxes) were made.
C
Our holding that a trust for the benefit of the IRS existed is not alone sufficient to answer the question presented by this case: whether the particular dollars that AIA paid to the IRS from its general operating accounts were “property of the debtor.” Only if those particular funds were held in trust for the IRS do they escape characterization as “property of the debtor.” All § 7501 reveals is that AIA at one point created a trust for the IRS; that section provides no rule by which we can decide whether the assets AIA used to pay the IRS were assets belonging to that trust.
In the absence of specific statutory guidance on how we are to determine whether the assets transferred to the IRS were trust property, we might naturally begin with the common-law rules that have been created to answer such questions about other varieties of trusts. Unfortunately, such rules are of limited utility in the context of the trust created by § 7501. Under common-law principles, a trust is created in property; a trust therefore does not come into existence until the settlor identifies an ascertainable interest in property to be the trust res. G. Bogert, Law of Trusts and Trustees § 111 (rev. 2d ed. 1984); 1A W. Fratcher, Scott on Trusts § 76 (4th ed. 1987). A § 7501 trust is radically different from the common-law paradigm, however. That provision states that “the amount of [trust-fund] tax . . . collected or withheld shall be held to be a special fund in trust for the United States.” (Emphasis added.) Unlike a common-law trust, in which the settlor sets aside particular property as the trust res, § 7501 creates a trust in an abstract “amount”—a dollar figure not tied to any particular assets —rather than in the actual dollars withheld. Common-law tracing rules, designed for a system in which particular property is identified as the trust res, are thus unhelpful in this special context.
Federal law delineating the nature of the relationship between the § 7501 trust and preferential transfer rules is limited. The only case in which we have explored that topic at any length is United States v. Randall, 401 U. S. 513 (1971), a case dealing with a postpetition transfer of property to discharge trust-fund tax obligations that the debtor had accrued prepetition. There, a court had ordered a debtor in possession to maintain a separate account for its withheld federal income and FICA taxes, but the debtor did not comply. When the debtor was subsequently adjudicated a bankrupt, the United States sought to recover from the debtor’s general assets the amount of withheld taxes ahead of the expenses of the bankruptcy proceeding. The Government argued that the debtor held the amount of taxes due in trust for the IRS and that this amount could be traced to the funds the debtor had in its accounts when the bankruptcy petition was filed. The trustee maintained that no trust had been created because the debtor had not segregated the funds. The Court declined directly to address either of these contentions. Id., at 515. Rather, the Court simply refused to permit the IRS to recover the taxes ahead of administrative expenses, stating that “the statutory policy of subordinating taxes to costs and expenses of administration would not be served by creating or enforcing trusts which eat up an estate, leaving little or nothing for creditors and court officers whose goods and services created the assets.” Id., at 517.
In 1978, Congress fundamentally restructured bankruptcy law by passing the new Bankruptcy Code. Among the changes Congress decided to make was a modification of the rule this Court had enunciated in Randall under the old Bankruptcy Act. The Senate bill attacked Randall directly, providing in § 541 that trust-fund taxes withheld or collected prior to the filing of the bankruptcy petition were not “property of the estate.” See S. Rep. No. 95-1106, at 33. See also ibid. (“These amounts will not be property of the estate regardless of whether such amounts have been segregated from other assets of the debtor by way of a special account, fund, or otherwise, or are deemed to be a special fund in trust pursuant to provisions of applicable tax law”) (footnote omitted). The House bill did not deal explicitly with the problem of trust-fund taxes, but the House Report stated that “property of the estate” would not include property held in trust for another. See H. R. Rep. No. 95-595, at 368. Congress was unable to hold a conference, so the Senate and House floor managers met to reach compromises on the differences between the two bills. See 124 Cong. Rec. 32392 (1978) (remarks of Rep. Edwards); Klee, Legislative History of the New Bankruptcy Law, 28 DePaul L. Rev. 941, 953-954 (1979). The compromise reached with respect to the relevant portion of § 541, which applies to postpetition transfers, was embodied in the eventually enacted House amendment and explicitly provided that “in the case of property held in trust, the property of the estate includes the legal title, but not the beneficial interest in the property.” 124 Cong. Rec., at 32417 (remarks of Rep. Edwards). Cf. id., at 32363 (text of House amendment). Accordingly, the Senate language specifying that withheld or collected trust-fund taxes are not part of the bankruptcy estate was deleted as “unnecessary since property of the estate does not include the beneficial interest in property held by the debtor as a trustee. Under [§ 7051], the amounts of withheld taxes are held to be a special fund in trust for the United States.” Id., at 32417 (remarks of Rep. Edwards).
Representative Edwards discussed the effects of the House language on the rule established by Randall, indicating that the House amendment would supplant that rule:
“[A] serious problem exists where ‘trust fund taxes’ withheld from others are held to be property of the estate where the withheld amounts are commingled with other assets of the debtor. The courts should permit the use of reasonable assumptions under which the Internal Revenue Service, and other tax authorities, can demonstrate that amounts of withheld taxes are still in the possession of the debtor at the commencement of the case.” Ibid.
The context of Representative Edwards’ comment makes plain that he was discussing whether a postpetition payment of trust-fund taxes involved “property of the estate.” This focus is not surprising given that Randall, the case Congress was addressing, involved a postpetition demand for payment by the IRS. But Representative Edwards’ discussion also applies to the question whether a pre petition payment is made from “property of the debtor.” We have explained that “property of the debtor” is that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings. Supra, at 58. The same “reasonable assumptions” therefore apply in both contexts.
The strict rule of Randall thus did not survive the adoption of the new Bankruptcy Code. But by requiring the IRS to “demonstrate that amounts of taxes withheld are still in the possession of the debtor at the commencement of the case [i. e., at the filing of the petition],” 124 Cong. Rec., at 32417 (remarks of Rep. Edwards), Congress expected that the IRS would have to show some connection between the § 7501 trust and the assets sought to be applied to a debtor’s trust-fund tax obligations. See United States v. Whiting Pools, Inc., 462 U. S. 198, 205, n. 10 (1983) (IRS cannot exclude funds from the estate if it cannot trace them to § 7501 trust property). The question in this case is how extensive the required nexus must be. The Bankruptcy Code provides no explicit answer, and Representative Edwards’ admonition that courts should “permit the use of reasonable assumptions” does not add much. The House Report does, however, give sufficient guidance regarding those assumptions to permit us to conclude that the nexus requirement is satisfied here. That Report states:
“A payment of withholding taxes constitutes a payment of money held in trust under Internal Revenue Code § 7501(a), and thus will not be a preference because the beneficiary of the trust, the taxing authority, is in a separate class with respect to those taxes, if they have been properly held for payment, as they will have been if the debtor is able to make the payments.” H. R. Rep. No. 95-595, supra, at 373.
Under a literal reading of the above passage, the bankruptcy trustee could not avoid any voluntary prepetition payment of trust-fund taxes, regardless of the source of the funds. As the House Report expressly states, the limitation that the funds must “have been properly held for payment” is satisfied “if the debtor is able to make the payments.” The debtor’s act of voluntarily paying its trust-fund tax obligation therefore is alone sufficient to establish the required nexus between the “amount” held in trust and the funds paid.
We adopt this literal reading. In the absence of any suggestion in the Bankruptcy Code about what tracing rules to apply, we are relegated to the legislative history. The courts are directed to apply “reasonable assumptions” to govern the tracing of funds, and the House Report identifies one such assumption to be that any voluntary prepetition payment of trust-fund taxes out of the debtor’s assets is not a transfer of the debtor’s property. Nothing in the Bankruptcy Code or its legislative history casts doubt on the reasonableness of that assumption. Other rules might be reasonable, too, but the only evidence we have suggests that Congress preferred this one. We see no reason to disregard that evidence.
III
We hold that AIA’s payments of trust-fund taxes to the IRS from its general accounts were not transfers of “property of the debtor,” but were instead transfers of property held in trust for the Government pursuant to § 7501. Such payments therefore cannot be avoided as preferences. The judgment of the Court of Appeals is
Affirmed.
This case is governed by 11 U. S. C. § 547(b) (1982 ed.), which reads:
“Except as provided in subsection (c) of this section, the trustee may avoid any transfer of property of the debtor—
“(1) to or for the benefit of a creditor;
“(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
“(3) made while the debtor was insolvent;
“(4) made—
“(A) on or within 90 days before the date of the filing of the petition; or
“(B) between 90 days and one year before the date of the filing of the petition, if such creditor, at the time of such transfer—
“(i) was an insider; and
“(ii) had reasonable cause to believe the debtor was insolvent at the time of such transfer; and
“(5) that enables such creditor to receive more than such creditor would receive if—
“(A) the case were a case under chapter 7 of this title;
“(B) the transfer had not been made; and
“(C) such creditor received payment of such debt to the extent provided by the provisions of this title.”
The statute has been amended to replace “property of the debtor” with “an interest of the debtor in property.” See n. 3, infra. The old version of § 547(b) applies to this case, however, because AIA filed its bankruptcy petition before the effective date of the amendment.
No other Court of Appeals has decided a case that presents the precise issue we decide here. The Ninth and District of Columbia Circuits have, however, resolved against the taxing authorities cases presenting related issues. See In re R & T Roofing Structures & Commercial Framing, Inc., 887 F. 2d 981, 987 (CA9 1989) (rejecting the Government’s argument that assets the IRS seized from a debtor to satisfy a trust-fund tax obligation before the debtor filed its bankruptcy petition were assets held in trust for the Government under 26 U. S. C. § 7501, and therefore deciding that the transfer effected by the seizure involved “property of the debtor” and was not exempt from avoidance); Drabkin v. District of Columbia, 263 U. S. App. D. C. 122, 125, 824 F. 2d 1102, 1105 (1987) (reaching a similar conclusion with respect to a voluntary payment of withheld District of Columbia employee income taxes in a case governed by a provision of local law that “essentially mirror[ed]” § 7501).
To the extent the 1984 amendments to § 547(b) are relevant, they confirm our view that § 541 guides our analysis of what property is “property of the debtor” for purposes of § 547(b). Among the changes was the substitution of “an interest of the debtor in property” for “property of the debtor.” 11 U. S. C. § 547(b) (1988 ed.). Section 547(b) thus now mirrors § 541's definition of “property of the estate” as certain “interests of the debtor in property.” 11 U. S. C. § 541(a)(1) (1988 ed.). The Senate Report introducing a predecessor to the bill that amended § 547(b) described the new language as a “clarifying change.” S. Rep. No. 98-65, p. 81 (1983). We therefore read both the older language (“property of the debtor”) and the current language (“an interest of the debtor in property”) as coextensive with “interests of the debtor in property” as that term is used in 11 U. S. C. § 541(a)(1) (1988 ed.).
The general common-law rule that a trust is not created absent a designation of particular property obviously does not invalidate § 7501's creation of a trust in the “amount” of withheld taxes. The common law of trusts is not binding on Congress.
Because of the absence of a conference and the key roles played by Representative Edwards and his counterpart floor manager Senator DeConcini, we have treated their floor statements on the Bankruptcy Reform Act of 1978 as persuasive evidence of congressional intent. See, e. g., Commodity Futures Trading Comm’n v. Weintraub, 471 U. S. 343, 351 (1985). Cf. 124 Cong. Rec. 32391 (1978) (remarks of Rep. Rousselot) (expressing view that remarks of floor manager of the Act have “the effect of being a conference report”).
Petitioner’s claim that this legislative history is irrelevant because the House Bill was not enacted is in error. The exact language to which the quoted portion of the House Report refers was enacted into law. Compare §647(b) with H. R. 8200, 95th Cong., 1st Sess., § 547(b) (1977). The version of § 541 that was eventually enacted is different from the original House bill, but only in that it makes explicit rather than implicit that “property of the estate” does not include the beneficiary’s equitable interest in property held in trust by the debtor. Compare § 541(d) with H. R. 8200, supra, § 541(a)(1).
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
|
songer_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Gladys L. COK, Plaintiff, Appellant, v. FAMILY COURT OF RHODE ISLAND, et al., Defendants, Appellees.
No. 92-1600.
United States Court of Appeals, First Circuit.
Feb. 9, 1993.
Gladys L. Cok, on brief, pro se.
James E. O’Neil, Atty. Gen. and Richard B. Woolley, Asst. Atty. Gen., on brief, for def endants-appellees.
Before BREYER, Chief Judge, CAMPBELL, Senior Circuit Judge, and TORRUELLA, Circuit Judge.
PER CURIAM.
Pro se plaintiff-appellant Cok appeals from an order remanding to the state court a matter which Cok had attempted to remove, and from an injunction preventing her from removing any other matters and placing restrictions on future filings. We are without jurisdiction to review the remand order, and vacate the injunction,
REMOVAL AND REMAND
Cok was divorced in Rhode Island in 1982. Protracted and acrimonious proceedings in the Rhode Island Family Court have continued to this day and form the backdrop of this appeal. According to Cok, the divorce and its fallout have produced over 600 orders. Cok’s contentions, while characterized in terms of preemption and federalism, revolve, at bottom, around her continuing objections to family court orders doling out her money to various persons whom she considers unworthy and corrupt.
This is at least Cok’s second attempt to remove matters devolving out of her divorce to the federal district court. In 1984, the Supreme Court of Rhode Island affirmed the divorce decree including various fees awarded. After the court-appointed guardian ad litem had moved in the Family Court of Rhode Island to collect a fee for his services, and the conservator, on order of the court, had attempted to sell certain properties owned by Cok, Cok undertook to remove the case to the District Court for the District of Rhode Island. Finding the case unremovable, the district court remanded. We summarily dismissed Cok’s appeal from that order under the authority of 28 U.S.C. § 1447(d). Cok v. Cosentino, No. 85-1058, slip op. (1st Cir. May 1, 1985). Thereafter, in Cok v. Cosentino, 876 F.2d 1 (1st Cir.1989), we affirmed the dismissal of Cok’s civil rights and RICO complaints against the same court-appointed guardian ad litem and conservator of marital assets. Subsequently, Judge Suttell of the Family Court of Rhode Island ordered the payment of $160,000 to the conservator, that amount to be disbursed from a $200,000 fund that Cok was “forced” to deposit with the family court.
In September 1991, apparently in response to Judge Suttell’s order, Cok attempted this removal. The State of Rhode Island and its family court appeared specially and moved for summary dismissal or, alternatively, for remand. The matter was referred to a magistrate-judge, who, after a hearing, determined that the remand motion should be granted. In concluding that the matter had been improvidently removed, the magistrate observed that Cok, in essence, sought appellate review of a matter decided by Judge Suttell, and had “misconstrued the purpose and proper use of the removal statute, 28 U.S.C. § 1446.” The magistrate also found that Cok was attempting to litigate a different set of claims than those litigated in family court and that these new claims could not be brought via a removal petition. The district court upheld the remand order and Cok has appealed.
This court is altogether without jurisdiction to review the subject of this appeal: a district court order remanding plaintiffs case to a Rhode Island state court. We so held on very similar facts in Unauthorized, Practice of Law Committee v. Gordon, 979 F.2d 11 (1st Cir.1992). In Unauthorized Practice, involving, as here, a remand order issued by a magistrate-judge and affirmed by the district court, we determined that such an order was immune from appellate review under 28 U.S.C. § 1447(d). Id. at 13. The same result applies here.
Unlike the plaintiff in Unauthorized Practice, Cok filed, within the ten days normally reserved for objecting to a magistrate’s report and recommendation, a motion to reconsider the order granting the motion to remand. The district court held a hearing on the motion, and “affirmed” the magistrate’s remand order. Nonetheless, as discussed in Unauthorized Practice, id. at 13-14, despite § 1447(d)’s language precluding review of remand orders “on appeal or otherwise” (emphasis added), whether the district court was reviewing a final order of remand (as appears to be the case), or whether it construed the magistrate’s order as a report and recommendation and Cok’s motion to reconsider as objections thereto, “§ 1447(d)’s prohibition on review of a remand order dooms [the] appeal here.” Id. at 14.
THE INJUNCTION
At the hearing on the motion to reconsider the remand order, the district court, sua sponte, enjoined Cok from attempting the pro se removal of any matters from the family court, or from filing any pro se actions in district court, without the prior approval of a judge of the court, and entered an order to that effect. It states:
Plaintiff is hereby enjoined from removing any matters to this Court from the Rhode Island Family Court, pro se, and is also enjoined from commencing any actions in this Court, pro se, without prior approval of a Judge of this Court.
On appeal from this injunctive order, Cok challenges the propriety of such an injunction, complaining of the absence of supporting findings by the district court.
Federal courts plainly possess discretionary powers to regulate the conduct of abusive litigants. Castro v. United States, 775 F.2d 399, 408 (1st Cir.1985); Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir.), cert. denied 449 U.S. 829, 101 S.Ct. 96, 66 L.Ed.2d 34 (1980). However, the restrictions imposed must be tailored to the specific circumstances presented. Castro, 775 F.2d at 410 (“[I]f an injunction against future litigation were couched in overly broad terms, this could impermissibly infringe upon a litigator’s right of access to the courts”); see also Sires v. Gabriel, 748 F.2d 49, 51-52 (1st Cir.1984).
To determine the appropriateness of an injunction barring a litigant from bringing without advance permission any action in the district court, we look to the degree to which indicia supporting such a comprehensive ban are present in the record. We have said that the use of broad filing restrictions against pro se plaintiffs “should be approached with particular caution.” Pavilonis, 626 F.2d at 1079. We have also required, like other jurisdictions, that in such situations a sufficiently developed record be presented for review. See, e.g., Castro, 775 F.2d at 409 & n. 11; see also De Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir.), cert. denied, 498 U.S. 1001, 111 S.Ct. 562, 112 L.Ed.2d 569 (1990); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988).
An initial problem with the present injunction is that Cok was not warned or otherwise given notice that filing restrictions were contemplated. She thus was without an opportunity to respond before the restrictive filing order was entered. Adequate notice may be informal but should be afforded. For example, in Pavilonis, 626 F.2d at 1077, a magistrate’s report recommended that the district court impose filing restrictions and the plaintiff filed objections to that report. In Castro, 775 F.2d at 402, the defendants tried to enjoin the plaintiffs from relitigating matters arising out of the case at hand or any earlier litigation between the parties. Where recommendations or requests like this do not come first, courts have issued show cause orders to errant pro se litigators, Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991), or have entered a cautionary order to the effect that filing restrictions may be in the offing in response to groundless litigation. See, e.g., Martin v. District of Columbia Court of Appeals, — U.S. -, -, 113 S.Ct. 397, 398, 121 L.Ed.2d 305 (1992); Ketchum v. Cruz, 961 F.2d 916, 918 (10th Cir.1992); Winslow v. Romer, 759 F.Supp. 670, 678 (D.Colo.1991) (plaintiff repeatedly “informed” that a litigant may not collaterally attack a state court judgment or order in federal court, or unilaterally declare such judgments or orders void, and then use that proclamation as the basis for an action against court or government officials, attorneys, or other parties). Here, as in Sires, 748 F.2d at 51, the defendants did not seek an injunction nor did they maintain that they had been harassed by Cok’s conduct. We think, therefore, that Cok should have been given an opportunity by the court to oppose the entry of so broad an order placing restrictions on court access. Accord De Long, 912 F.2d at 1147; Tripati v. Beaman, 878 F.2d 351 (10th Cir.1989); In re Powell, 851 F.2d at 431; Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir.1987); In re Hartford Textile Corp., 613 F.2d 388, 390 (2d Cir.1979), (district court, in entering sua sponte order curtailing pro se litigant’s future access to the courts, must give notice and allow litigant to be heard on the matter).
A second question is whether the record is sufficiently developed to show that an injunction as sweeping as this one is warranted. Plaintiff is enjoined, inter alia, from “commencing any actions in this court, pro se, without prior approval.... ” It would have been helpful had the court identified what previously filed frivolous cases or other abuses caused it to issue this injunction. See, e.g., Castro, 775 F.2d at 409 n. 11; see also Martin, — U.S. at -, 113 S.Ct. at 397 nn.1 & 2; In re Sindram, 498 U.S. 177 n. 1, 111 S.Ct. 596 n. 1, 112 L.Ed.2d 599 (1991); De Long, 912 F.2d at 1147-48; Tripati, 878 F.2d at 353; In re Martin-Trigona, 737 F.2d 1254, 1264-74 (2d Cir.1984) (reciting history of extensive filings). While it is clear enough that — beyond the instant removal — Cok made a misguided removal effort in 1984, and unsuccessfully sued the guardian ad litem thereafter, we are unclear whether these were the full extent of her actions leading to the injunction. If they were, the court should have explained why it felt it appropriate to ban, without findings as to the abuses of the judicial process causing imposition of the injunction, the commencement of “any actions in this court” (as opposed, for example, to a ban merely on further attempts, without authorization, to remove, pro se, more proceedings from the Rhode Island Family Court divorce case). See Sires, 748 F.2d at 51; see also De Long, 912 F.2d at 1148; In re Powell, 851 F.2d at 431. Injunctions restricting court access across the board in all cases are very much “the exception to the general rule of free access to the courts.” Pavilonis, 626 F.2d at 1079. They should be issued only when abuse is so continuous and widespread as to suggest no reasonable alternative.
We emphasize that it is the breadth of the instant order that causes us some concern. Had the court, after notice and opportunity to respond, merely enjoined Cok from further frivolous removals from the family court, we would have doubtless approved. The present record supports such a limited order. We have not hesitated to uphold injunctions that were narrowly drawn to counter the specific offending conduct. Castro, 775 F.2d at 410; cf. Pavilonis, 626 F.2d at 1079 (upholding issuance of injunction but narrowing its scope). But this order is not limited to restricting improper conduct of the type which the present record indicates plaintiff has displayed in the past. If the “specific vice” sought to be curtailed is simply the appellant’s propensity, as here and in 1984, to attempt improper removals to federal court of matters based on her state divorce proceeding, the district court may, after notice, wish to enter an order limiting such conduct. See Castro, 775 F.2d at 410. On the other hand, if the court means to issue a more generalized injunction aimed at preventing the bringing of any and all unpermitted pro se actions in the district court, it must develop a record showing such widespread abuse of the judicial system as to warrant such a broadcast prohibition. Id. at 410 n. 13.
We recognize that the district court is in the best position to set preconditions on access and do not prescribe any particular design for such restraints to take. See Procup v. Strickland, 792 F.2d 1069, 1073 (11th Cir.1986) (en banc) (compiling illustrative restrictions); see also Abdul-Akbar v. Watson, 901 F.2d 329, 333 (3d Cir.1990); Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir.1986); Winslow, 759 F.Supp. at 678, 683-85. We are also sympathetic to the difficult task faced by a court in attempting to ensure that judicial resources are not misused by abusive litigants. The present litigant has clearly been acting in an unacceptable manner. But for the reasons discussed above, we are unable, without more, to affirm an injunction of unlimited breadth.
CONCLUSION
Plaintiffs appeal from the remand order is dismissed for lack of jurisdiction. The order as now worded enjoining the plaintiff, pro se, from removing family court matters and commencing any actions in the district court, pro se, without prior approval, is vacated and remanded to the district court for further proceedings not inconsistent with this opinion.
Appellant’s pending motion for a stay of this appeal is denied.
So ordered.
. At the hearing before the district court to reconsider the remand order, Cok withdrew her motion for recusal of the district judge, and it was not acted upon. Although raised on appeal, that issue has been waived.
. In agreement with other circuits that have considered the question, we are satisfied that we have jurisdiction to review an order restricting a pro se litigant's right of access even when no new filing has, as yet, been rejected under the order. See Moy v. United States, 906 F.2d 467, 470 (9th Cir.1990) (collecting cases); Pavilonis v. King, 626 F.2d 1075, 1077 (1st Cir.), cert. denied, 449 U.S. 829, 101 S.Ct. 96, 66 L.Ed.2d 34 (1980).
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_caseoriginstate
|
12
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
WILLIAMS v. FLORIDA
No. 927.
Argued March 4, 1970
Decided June 22, 1970
Richard Kanner argued the cause and filed briefs for petitioner.
Jesse J. McCrary, Jr., Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief were Earl Faircloth, Attorney General, and Ronald W. Sabo, Assistant Attorney General.
Jack Greenberg and Michael Meltsner filed a brief for Virgil Jenkins as amicus curiae urging reversal.
Mr. Justice White
delivered the opinion of the Court.
Prior to his trial for robbery in the State of Florida, petitioner filed a “Motion for a Protective Order,” seeking to be excused from the requirements of Rule 1.200 of the Florida Rules of Criminal Procedure. That rule requires a defendant, on written demand of the prosecuting attorney, to give notice in advance of trial if the defendant intends to claim an alibi, and to furnish the prosecuting attorney with information as to the place where he claims to have been and with the names and addresses of the alibi witnesses he intends to use. In his motion petitioner openly declared his intent to claim an alibi, but objected to the further disclosure requirements on the ground that the rule “compels the Defendant in a criminal case to be a witness against himself” in violation of his Fifth and Fourteenth Amendment rights. The motion was denied. Petitioner also filed a pretrial motion to impanel a 12-man jury instead of the six-man jury provided by Florida law in all but capital cases. That motion too was denied. Petitioner was convicted as charged and was sentenced to life imprisonment. The District Court of Appeal affirmed, rejecting petitioner’s claims that his Fifth and Sixth Amendment rights had been violated. We granted certiorari. 396 U. S. 955 (1969).
I
Florida’s notice-of-alibi rule is in essence a requirement that a defendant submit to a limited form of pretrial discovery by the State whenever he intends to rely at trial on the defense of alibi. In exchange for the defendant’s disclosure of the witnesses he proposes to use to establish that defense, the State in turn is required to notify the defendant of any witnesses it proposes to offer in rebuttal to that defense. Both sides are under a continuing duty promptly to disclose the names and addresses of additional witnesses bearing on the alibi as they become available. The threatened sanction for failure to comply is the exclusion at trial of the defendant’s alibi evidence — except for his own testimony — or, in the case of the State, the exclusion of the State’s evidence offered in rebuttal of the alibi.
In this case, following the denial of his Motion for a Protective Order, petitioner complied with the alibi rule and gave the State the name and address of one Mary Scotty. Mrs. Scotty was summoned to the office of the State Attorney on the morning of the trial, where she gave pretrial testimony. At the trial itself, Mrs. Scotty, petitioner, and petitioner’s wife all testified that the three of them had been in Mrs. Scotty’s apartment during the time of the robbery. On two occasions during cross-examination of Mrs. Scotty, the prosecuting attorney confronted her with her earlier deposition in which she had given dates and times that in some respects did not correspond with the dates and times given at trial. Mrs. Scotty adhered to her trial story, insisting that she had been mistaken in her earlier testimony. The State also offered in rebuttal the testimony of one of the officers investigating the robbery who claimed that Mrs. Scotty had asked him for directions on the afternoon in question during the time when she claimed to have been in her apartment with petitioner and his wife.
We need not linger over the suggestion that the discovery permitted the State against petitioner in this case deprived him of “due process” or a “fair trial.” Florida law provides for liberal discovery by the defendant against the State, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant. Given the ease with which an alibi can be fabricated, the State’s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. Reflecting this interest, notice-of-alibi provisions, dating at least from 1927, are now in existence in a substantial number of States. The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as “due process” is concerned, for the instant Florida rule, which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.
Petitioner’s major contention is that he was “compelled... to be a witness against himself” contrary to the commands of the Fifth and Fourteenth Amendments because the notice-of-alibi rule required him to give the State the name and address of Mrs. Scotty in advance of trial and thus to furnish the State with information useful in convicting him. No pretrial statement of petitioner was introduced at trial; but armed with Mrs. Scotty’s name and address and the knowledge that she was to be petitioner’s alibi witness, the State was able to take her deposition in advance of trial and to find rebuttal testimony. Also, requiring him to reveal the elements of his defense is claimed to have interfered with his right to wait until after the State had presented its case to decide how to defend against it. We conclude, however, as has apparently every other court that has considered the issue, that the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses.
■ The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. The pressures generated by the State's evidence may be severe but they do not vitiate the defendant’s choice to present an alibi defense and witnesses to prove it, even though the attempted defense ends in catastrophe for the defendant. However “testimonial” or “incriminating” the alibi defense proves to be, it cannot be considered “compelled” within the meaning of the Fifth and Fourteenth Amendments.
Very similar constraints operate on the defendant when the State requires pretrial notice of alibi and the naming of alibi witnesses. Nothing in such a rule requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice. That choice must be made, but the pressures that bear on his pretrial decision are of the same nature as those that would induce him to call alibi witnesses at the trial: the force of historical fact beyond both his and the State’s control and the strength of the State’s case built on these facts. Response to that kind of pressure by offering evidence or testimony is not compelled self-incrimination transgressing the Fifth and Fourteenth Amendments..
In the case before us, the notice-of-alibi rule by itself in no way affected petitioner’s crucial decision to call alibi witnesses or added to the legitimate pressures leading to that course of action. At most, the rule only compelled petitioner to accelerate the timing of his disclosure, forcing him to divulge at an earlier date information that the petitioner from the beginning planned to divulge at trial. Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State’s case before announcing the nature of his defense, any more than it entitles him to await the jury’s verdict on the State’s case-in-chief before deciding whether or not to take the stand himself.
Petitioner concedes that absent the notice-of-alibi rule the Constitution would raise no bar to the court’s granting the State a continuance at trial on the ground of surprise as soon as the alibi witness is called. Nor would there be self-incrimination problems if, during that continuance, the State was permitted to do precisely what it did here prior to trial: take the deposition of the witness and find rebuttal evidence. But if so utilizing a continuance is permissible under the Fifth and Fourteenth Amendments, then surely the same result may be accomplished through pretrial discovery, as it was here, avoiding the necessity of a disrupted trial. We decline to hold that the privilege against compulsory self-incrimination guarantees the defendant the right to surprise the State with an alibi defense.
II
In Duncan v. Louisiana, 391 U. S. 145 (1968), we held that the Fourteenth Amendment guarantees a right to trial by jury in all criminal cases that — were they to be tried in a federal court — would come within the Sixth Amendment’s guarantee. Petitioner’s trial for robbery on July 3, 1968, clearly falls within the scope of that holding. See Baldwin v. New York, ante, p. 66; DeStefano v. Woods, 392 U. S. 631 (1968). The question in this case then is whether the constitutional guarantee of a trial by “jury” necessarily requires trial by exactly 12 persons, rather than some lesser number — in this case six. We hold that the 12-man panel is not a necessary ingredient of “trial by jury,” and that respondent’s refusal to impanel more than the six members provided for by Florida law did not violate petitioner’s Sixth Amendment rights as applied to the States through the Fourteenth.
We had occasion in Duncan v. Louisiana, supra, to review briefly the oft-told history of the development of trial by jury in criminal cases. That history revealed a long tradition attaching great importance to the concept of relying on a body of one’s peers to determine guilt or innocence as a safeguard against arbitrary law enforcement. That same history, however, affords little insight into the considerations that gradually led the size of that body to be generally fixed at 12. Some have suggested that the number 12 was fixed upon simply because that was the number of the presentment jury from the hundred, from which the petit jury developed. Other, less circular but more fanciful reasons for the number 12 have been given, “but they were all brought forward after the number was fixed,” and rest on little more than mystical or superstitious insights into the significance of “12.” Lord Coke’s explanation that the “number of twelve is much respected in holy writ, as 12 apostles, 12 stones, 12 tribes, etc.,” is typical. In short, while sometime in the 14th century the size of the jury at common law came to be fixed generally at 12, that particular feature of the jury system appears to have been a historical accident, unrelated to the great purposes which gave rise to the jury in the first place. The question before us is whether this accidental feature of the jury has been immutably codified into our Constitution.
This Court’s earlier decisions have assumed an affirmative answer to this question. The leading case so construing the Sixth Amendment is Thompson v. Utah, 170 U. S. 343 (1898). There the defendant had been tried and convicted by a 12-man jury for a crime committed in the Territory of Utah. A new trial was granted, but by that time Utah had been admitted as a State. The defendant’s new trial proceeded under Utah’s Constitution, providing for a jury of only eight members. This Court reversed the resulting conviction, holding that Utah’s constitutional provision was an ex post facto law as applied to the defendant. In reaching its conclusion, the Court announced that the Sixth Amendment was applicable to the defendant’s trial when Utah was a Territory, and that the jury referred to in the Amendment was a jury “constituted, as it was at common law, of twelve persons, neither more nor less.” 170 U. S., at 349. Arguably unnecessary for the result, this announcement was supported simply by referring to the Magna Carta, and by quoting passages from treatises which noted — what has already been seen— that at common law the jury did indeed consist of 12. Noticeably absent was any discussion of the essential step in the argument: namely, that every feature of the jury as it existed at common law — whether incidental or essential to that institution — was necessarily included in the Constitution wherever that document referred to a “jury.” Subsequent decisions have reaffirmed the announcement in Thompson, often in dictum and usually by relying — where there was any discussion of the issue at all — solely on the fact that the common-law jury consisted of 12. See Patton v. United States, 281 U. S. 276, 288 (1930); Rassmussen v. United States, 197 U. S. 516, 519 (1905); Maxwell v. Dow, 176 U. S. 581, 586 (1900).
While “the intent of the Framers” is often an elusive quarry, the relevant constitutional history casts considerable doubt on the easy assumption in our past decisions that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution. Provisions for jury trial were first placed in the Constitution in Article Ill’s provision that “[t]he Trial of all Crimes... shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.” The “very scanty history [of this provision] in the records of the Constitutional Convention” sheds little light either way on the intended correlation between Article Ill’s “jury” and the features of the jury at common law. Indeed, pending and after the adoption of the Constitution, fears were expressed that Article Ill’s provision failed to preserve the common-law right to be tried by a “jury of the vicinage.” That concern, as well as the concern to preserve the right to jury in civil as well as criminal cases, furnished part of the impetus for introducing amendments to the Constitution that ultimately resulted in the jury trial provisions of the Sixth and Seventh Amendments. As introduced by James Madison in the House, the Amendment relating to jury trial in criminal cases would have provided that:
“The trial of all crimes... shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites...
The Amendment passed the House in substantially this form, but after more than a week of debate in the Senate it returned to the House considerably altered. While records of the actual debates that occurred in the Senate are not available, a letter from Madison to Edmund Pendleton on September 14, 1789, indicates that one of the Senate’s major objections was to the “vicinage” requirement in the House version. A conference committee was appointed. As reported in a second letter by Madison on September 23, 1789, the Senate remained opposed to the vicinage requirement, partly because in its view the then-pending judiciary bill — which was debated at the same time as the Amendments — adequately preserved the common-law vicinage feature, making it unnecessary to freeze that requirement into the Constitution. “The Senate,” wrote Madison:
“are... inflexible in opposing a definition of the locality of Juries. The vicinage they contend is either too vague or too strict a term; too vague if depending on limits to be fixed by the pleasure of the law, too strict if limited to the county. It was proposed to insert after the word Juries, 'with the accustomed requisites,’ leaving the definition to be construed according to the judgment of professional men. Even this could not be obtained.... The Senate suppose, also, that the provision for vicinage in the Judiciary bill will sufficiently quiet the fears which called for an amendment on this point.”
The version that finally emerged from the Committee was the version that ultimately became the Sixth Amendment, ensuring an accused:
“the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law....”
Gone were the provisions spelling out such common-law features of the jury as “unanimity,” or “the accustomed requisites.” And the “vicinage” requirement itself had been replaced by wording that reflected a compromise between broad and narrow definitions of that term, and that left Congress the power to determine the actual size of the “vicinage” by its creation of judicial districts.
Three significant features may be observed in this sketch of the background of the Constitution’s jury trial provisions. First, even though the vicinage requirement was as much a feature of the common-law jury as was the 12-man requirement, the mere reference to “trial by jury” in Article III was not interpreted to include that feature. Indeed, as the subsequent debates over the Amendments indicate, disagreement arose over whether the feature should be included at all in its common-law sense, resulting in the compromise described above. Second, provisions that would have explicitly tied the “jury” concept to the “accustomed requisites” of the time were eliminated. Such action is concededly open to the explanation that the “accustomed requisites” were thought to be already included in the concept of a “jury.” But that explanation is no more plausible than the contrary one: that the deletion had some substantive effect. Indeed, given the clear expectation that a substantive change would be effected by the inclusion or deletion of an explicit “vicinage” requirement, the latter explanation is, if anything, the more plausible. Finally, contemporary legislative and constitutional provisions indicate that where Congress wanted to leave no doubt that it was incorporating existing common-law features of the jury system, it knew how to use express language to that effect. Thus, the Judiciary bill, signed by the President on the same day that the House and Senate finally agreed on the form of the Amendments to be submitted to the States, provided in certain cases for the narrower “vicinage” requirements that the House had wanted to include in the Amendments. And the Seventh Amendment, providing for jury trial in civil cases, explicitly added that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
We do not pretend to be able to divine precisely what the word “jury” imported to the Framers, the First Congress, or the States in 1789. It may well be that the usual expectation was that the jury would consist of 12, and that hence, the most likely con-elusion to be drawn is simply that little thought was actually given to the specific question we face today. But there is absolutely no indication in “the intent of the Framers” of an explicit decision to equate the constitutional and common-law characteristics of the jury. Nothing in this history suggests, then, that we do violence to the letter of the Constitution by turning to other than purely historical considerations to determine which features of the jury system, as it existed at common law, were preserved in the Constitution. The relevant inquiry, as we see it, must be the function that the particular feature performs and its relation to the purposes of the jury trial. Measured by this standard, the 12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment.
The purpose of the jury trial, as we noted in Duncan, is to prevent oppression by the Government. “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” Duncan v. Louisiana, supra, at 156. Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12 — particularly if the requirement of unanimity is retained. And, certainly the reliability of the jury as a factfinder hardly seems likely to be a function of its size.
It might be suggested that the 12-man jury gives a defendant a greater advantage since he has more “chances” of finding a juror who will insist on acquittal and thus prevent conviction. But the advantage might just as easily belong to the State, which also needs only one juror out of twelve insisting on guilt to prevent acquittal. What few experiments have occurred — usually in the civil area — indicate that there is no discernible difference between the results reached by the two different-sized juries. In short, neither currently available evidence nor theory suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer members.
Similarly, while in theory the number of viewpoints represented on a randomly selected jury ought to increase as the size of the jury increases, in practice the difference between the 12-man and the six-man jury in terms of the cross-section of the community represented seems likely to be negligible. Even the 12-man jury cannot insure representation of every distinct voice in the community, particularly given the use of the peremptory challenge. As long as arbitrary exclusions of a particular class from the jury rolls are forbidden, see, e. g., Carter v. Jury Commission, 396 U. S. 320, 329-330 (1970), the concern that the cross-section will be significantly diminished if the jury is decreased in size from 12 to six seems an unrealistic one.
We conclude, in short, as we began: the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance “except to mystics.” Duncan v. Louisiana, supra, at 182 (Harlan, J., dissenting). To read the Sixth Amendment as forever codifying a feature so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers which would require considerably more evidence than we have been able to discover in the history and language of the Constitution or in the reasoning of our past decisions. We do not mean to intimate that legislatures can never have good reasons for concluding that the 12-man jury is preferable to the smaller jury, or that such conclusions — reflected in the provisions of most States and in our federal system— are in any sense unwise. Legislatures may well have their own views about the relative value of the larger and smaller juries, and may conclude that, wholly apart from the jury’s primary function, it is desirable to spread the collective responsibility for the determination of guilt among the larger group. In capital cases, for example, it appears that no State provides for less than 12 jurors— a fact that suggests implicit recognition of the value of the larger body as a means of legitimating society’s decision to impose the death penalty. Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury. Consistent with this holding, we conclude that petitioner’s Sixth Amendment rights, as applied to the States through the Fourteenth Amendment, were not violated by Florida’s decision to provide a six-man rather than a 12-man jury. The judgment of the Florida District Court of Appeal is
Affirmed.
Mr. Justice Blackmun took no part in the consideration or decision of this case.
APPENDIX TO OPINION OF THE COURT
Fla. Rule Crina. Proc. 1.200:
“Upon the written demand of the prosecuting attorney, specifying as particularly as is known to such prosecuting attorney, the place, date and time of the commission of the crime charged, a defendant in a criminal case who intends to offer evidence of an alibi in his defense shall, not less than ten days before trial or such other time as the court may direct, file and serve upon such prosecuting attorney a notice in writing of his intention to claim such alibi, which notice shall contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as is known to defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish such alibi. Not less than five days after receipt of defendant's witness list, or such other times as the court may direct, the prosecuting attorney shall file and serve upon the defendant the names and addresses (as particularly as are known to the prosecuting attorney) of the witnesses the State proposes to offer in rebuttal to discredit the defendant’s alibi at the trial of the cause. Both the defendant and the prosecuting attorney shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses which come to the attention of either party subsequent to filing their respective witness lists as provided in this rule. If a defendant fails to file and serve a copy of such notice as herein required, the court may exclude evidence offered by such defendant for the purpose of proving an alibi, except the testimony of the defendant himself. If such notice is given by a defendant, the court may exclude the testimony of any witness offered by the defendant for the purpose of proving an alibi if the name and address of such witness as particularly as is known to defendant or his attorney is not stated in such notice. If the prosecuting attorney fails to file and serve a copy on the defendant of a list of witnesses as herein provided, the court may exclude evidence offered by the state in rebuttal to the defendant’s alibi evidence. If such notice is given by the prosecuting attorney, the court may exclude the testimony of any witness offered by the prosecuting attorney for the purpose of rebutting the defense of alibi if the name and address of such witness as particularly as is known to the prosecuting attorney is not stated in such notice. For good cause shown the court may waive the requirements of this rule.”
The full text of the -rule is set out in the appendix to this opinion, infra, at 104. Subsequent references to an appendix are to the separately bound appendix filed with the briefs in this case [hereinafter “App.”].
See App. 5.
Fla. Stat. §913.10 (1) (1967):
“Twelve men shall constitute a jury to try all capital cases, and six men shall constitute a jury to try all other criminal cases.”
See App. 82.
The Supreme Court of Florida had earlier held that it was without jurisdiction to entertain petitioner’s direct appeal from the trial court. See id., at 92. Under Florida law, the District Court of Appeal became the highest court from which a decision could be had. See Fla. Const., Art. V, § 4 (2); Fla. App. Rule 2.1a (5) (a); Ansin v. Thurston, 101 So. 2d 808, 810 (1958).
“For good cause shown” the court may waive the requirements of the rule. Fla. Rule Crim. Proc. 1.200.
See App. 58-60.
Id., at 65-66.
See Fla. Rule Crim. Proc. 1.220. These discovery provisions were invoked by petitioner in the instant case. See App. 3, 4, 8.
See Epstein, Advance Notice of Alibi, 55 J. Crim. L. C. & P. S. 29, 32 (1964).
In addition to Florida, at least 15 States appear to have alibi-notice requirements of one sort or another. See Ariz. Rule Crim. Proc. 192 B (1956); Ind. Ann. Stat. §§9-1631 to 9-1633 (1956); Iowa Code §777.18 (1966); Kan. Stat. Ann. §62-1341 (1964); Mich. Comp. Laws §§ 768.20, 768.21 (1948); Minn. Stat. § 630.14 (1967); N. J. Rule 3:5-9 (1958); N. Y. Code Crim. Proc. §295-1 (1958); Ohio Rev. Code Ann. § 2945.58 (1954); Okla. Stat., Tit. 22, § 585 (1969); Pa. Rule Crim. Proc. 312 (1970); S. D. Comp. Laws §§ 23-37-5, 23-37-6 (1967); Utah Code Ann. § 77-22-17 (1953); Vt. Stat. Ann., Tit. 13, §§ 6561, 6562 (1959); Wis. Stat. § 955.07 (1961). See generally 6 J. Wigmore, Evidence § 18556 (3d ed. 1940).
We do not, of course, decide that each of these alibi-notice provisions is necessarily valid in all respects; that conclusion must await a specific context and an inquiry, for example, into whether the defendant enjoys reciprocal discovery against the State.
See, e. g., Brennan,, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash. U. L. Q. 279, 292.
E. g., State v. Stump, 254 Iowa 1181, 119 N. W. 2d 210, cert. denied, 375 U. S. 853 (1963); State v. Baldwin, 47 N. J. 379, 221 A. 2d 199, cert. denied, 385 U. S. 980 (1966); People v. Rakiec, 260 App. Div. 452, 457-458, 23 N. Y. S. 2d 607, 612-613 (1940); Commonwealth v. Vecchiolli, 208 Pa. Super. 483, 224 A. 2d 96 (1966); see Jones v. Superior Court, 58 Cal. 2d 56, 372 P. 2d 919 (1962); Louisell, Criminal Discovery and Self-Incrimination: Roger Traynor Confronts the Dilemma, 53 Calif. L. Rev. 89 (1965); Traynor, Ground Lost and Found in Criminal Discovery, 39 N. Y. U. L. Rev. 228 (1964); Comment, The Self-Incrimination Privilege: Barrier to Criminal Discovery?, 51 Calif. L. Rev. 135 (1963); 76 Harv. L. Rev. 838 (1963).
We emphasize that this case does not involve the question of the validity of the threatened sanction, had petitioner chosen not to comply with the notice-of-alibi rule. Whether and to what extent a State can enforce discovery rules against a defendant who fails to comply, by excluding relevant, probative evidence is a question raising Sixth Amendment issues which we have no occasion to explore. Cf. Brief for Amicus Curiae 17-26. It is enough that no such penalty was exacted here.
Petitioner’s apparent suggestion to the contrary is simply not borne out by the facts of this case. The mere requirement that petitioner disclose in advance his intent to rely on an alibi in no way “fixed” his defense as of that point in time. The suggestion that the State, by referring to petitioner’s proposed alibi in opening or closing statements might have “compelled” him to follow through with the defense in order to avoid an unfavorable inference is a hypothetical totally without support in this record. The first reference to the alibi came from petitioner’s own attorney in his opening remarks; the State’s response did not come until after the defense had finished direct examination of Mrs. Scotty. Petitioner appears to raise this issue as a possible defect in alibi-notice requirements in general, without seriously suggesting that his choice of defense at trial in this case would have been different but for his prior compliance with the rule. Indeed, in his Motion for a Protective Order, petitioner freely disclosed his intent to rely on an alibi; his only objection was to the further requirement that he disclose the nature of the alibi and the name of the witness. On these facts, then, we simply are not confronted with the question of whether a defendant can be compelled in advance of trial to select a defense from which he can no longer deviate. We do not mean to suggest, though, that such a procedure must necessarily raise serious constitutional problems. See State ex rel. Simos v. Burke, 41 Wis. 2d 129, 137, 163 N. W. 2d 177, 181 (1968) (“[i]f we are discussing the right of a defendant to defer until the moment of his testifying the election between alternative and inconsistent alibis, we have left the concept of the trial as a search for truth far behind”).
See Reply Brief for Petitioner 2 and n. 1.
It might also be argued that the “testimonial” disclosures protected by the Fifth Amendment include only statements relating to the historical facts of the crime, not statements relating solely to what a defendant proposes to do at trial.
See Duncan v. Louisiana, 391 U. S. 145, 151-154 (1968).
In tracing the development of the jury from the time when the jury performed a different, “inquisitory” function, James R. Thayer notes the following:
“In early times the inquisition had no fixed number. In the Frankish empire we are told of 66, 41, 20, 17, 13, 11, 8, 7, 53, 15, and a great variety of other numbers. So also among the Normans it varied much, and ‘twelve has not even the place of the prevailing grundzahl;’ the documents show all sorts of numbers — 4, 5„ 6, 12, 13-18, 21, 27, 30, and so on. It seems to have been the recognitions under Henry II. that established twelve as the usual number; even then the number was not uniform.” The Jury and Its Development, 5 Harv. L. Rev. 295 (1892) (citations omitted).
See J. Thayer, A Preliminary Treatise on Evidence at the Common Law 85 (1898).
Similarly, Professor Scott writes:
“At the beginning of the thirteenth century twelve was indeed the usual but not the invariable number. But by the middle of the fourteenth century the requirement of twelve had probably become definitely fixed. Indeed this number finally came to be regarded with something like superstitious reverence.” A. Scott, Fundamentals of Procedure in Actions at Law 75-76 (1922) (footnotes omitted).
W. Holdsworth, A History of English Law 325 (1927); Wells, The Origin of the Petty Jury, 27 L. Q. Rev. 347, 357 (1911). The latter author traces the development of the 12-man petit jury through the following four stages. The first stage saw the development of the presentment jury, made up generally of 12 persons from the hundred, whose function was simply to charge the accused with a crime; the test of his guilt or innocence was by some other means, such as trial by ordeal, battle, or wager of law. In the second stage, the presentment jury began to be asked for its verdict on the guilt or innocence of the person it had accused, and hence began to function as both a petit and a grand jury. In the third stage, “combination juries” were formed to render the verdict in order to broaden the base of representation beyond the local hundred, or borough, to include the county. These juries were formed by adding one or more presentment juries from one or more hundreds, as well as certain officials such as coroners or knights. “These combination juries numbered from twenty-four to eighty-four jurors, and the number became embarrassingly large and unwieldy, and the sense of the personal responsibility of each juror was in danger of being lost.” Id., at 356. The obvious fourth step was the creation of a special jury “formed by selecting one or more jurors from each of several of the presentment juries of the hundreds, until the number twelve is reached... probably because that was the number of the presentment jury from the hundred. Therefore, just as the presentment jury represented the voice of the hundred in making the accusation, so the jury of ‘the country’, with the same number, represented the whole county in deciding whether the accused was guilty or not.” Id., at 357.
Neither of these authors hazards a guess as to why the presentment jury itself numbered 12.
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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sc_petitioner
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122
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
HOLT CIVIC CLUB et al. v. CITY OF TUSCALOOSA et al.
No. 77-515.
Argued October 11, 1978
Decided November 28, 1978
Rehnquist, J., delivered the opinion of the Court, in which BuRGER, C. J., and Stewart, Blackmun, Powell, and Stevens, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 75. Brennan, J., filed a dissenting opinion, in which White and Marshall, JJ., joined, post, p. 79.
Edward Still argued the cause for appellants. With him on the briefs were Neil Bradley, Laughlin McDonald, Christopher Coates, and Bruce Ennis.
J. Wagner Finnell argued the cause and filed a brief for appellees.
Mr. Justice Rehnquist
delivered the opinion of the Court.
Holt is a small, largely rural, unincorporated community located on the northeastern outskirts of Tuscaloosa, the fifth largest city in Alabama. Because the community is within the three-mile police jurisdiction circumscribing Tuscaloosa’s corporate limits, its residents are subject to the city’s “police [and] sanitary regulations.” Ala. Code § 11-40-10 (1975). Holt residents are also subject to the criminal jurisdiction of the city’s court, Ala. Code § 12-14-1 (1975), and to the city’s power to license businesses, trades, and professions, Ala. Code § 11-51-91 (1975). Tuscaloosa, however, may collect from businesses in the police jurisdiction only one-half of the license fee chargeable to similar businesses conducted within the corporate limits. Ibid.
In 1973 appellants, an unincorporated civic association and seven individual residents of Holt, brought this statewide class action in the United States District Court for the Northern District of Alabama,' challenging the constitutionality of these Alabama statutes. They claimed that the city’s extraterritorial exercise of police powers over Holt residents, without a concomitant extension of the franchise on an equal footing with those residing within the corporate limits, denies residents of the police jurisdiction rights secured by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court denied appellants’ request to convene a three-judge court pursuant to 28 U. S. C. § 2281 (1970 ed.) and dismissed the complaint for failure to state a claim upon which relief could be granted. Characterizing the Alabama statutes as enabling Acts, the District Court held that the statutes lack the requisite statewide application necessary to convene a three-judge District Court. On appeal the Court of Appeals for the Fifth Circuit ordered the convening of a three-judge court, finding that the police jurisdiction statute embodies “ ‘a policy of statewide concern.’ ” Holt Civic Club v. Tuscaloosa, 525 F. 2d 653, 655 (1975), quoting Spielman Motor Sales Co. v. Dodge, 295 U. S. 89, 94 (1935).
A three-judge District Court was convened, but appellants’ constitutional claims fared no better on the merits. Noting that appellants sought a declaration that extraterritorial regulation is unconstitutional per se rather than an extension of the franchise to police jurisdiction residents, the District Court held simply that “[e]qual protection has not been extended to cover such contention.” App. to Juris. Statement 2a. The court rejected appellants’ due process claim without comment. Accordingly, appellees’ motion to dismiss was granted.
Unsure whether appellants’ constitutional attack on the Alabama statutes satisfied the requirements of 28 U. S. C. § 2281 (1970 ed.) for convening a three-judge district court, we postponed consideration of the jurisdictional issue until the hearing of the case on the merits. 435 U. S. 914 (1978). We now conclude that the three-judge court was properly convened and that appellants’ constitutional claims were properly rejected.
I
Before its repeal, 28 U. S. C. §2281 (1970 ed.) required that a three-judge district court be convened in any case in which a preliminary or permanent injunction was sought to restrain “the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute....” Our decisions have interpreted § 2281 to require the convening of a three-judge district court “where the challenged statute or regulation, albeit created or authorized by a state legislature, has statewide application or effectuates a statewide policy.” Board of Regents v. New Left Education Project, 404 U. S. 541, 542 (1972). Relying on Moody v. Flowers, 387 U. S. 97 (1967), appellees contend, and the original single-judge District Court held, that Alabama's police jurisdiction statutes lack statewide impact.
A three-judge court was improperly convened in Moody because the challenged state statutes had “limited application, concerning only a particular county involved in the litigation....” Id., at 104. In contrast, appellants’ constitutional attack focuses upon a state statute that creates the statewide system under which Alabama cities exercise extraterritorial powers. In mandatory terms, the statute provides that municipal police and sanitary ordinances “shall have force and effect in the limits of the city or town and in the police jurisdiction thereof and on any property or rights-of-way belonging to the city or town.” Clearly, Alabama’s police jurisdiction statutes have statewide application. See, e. g., Sailors v. Board of Education, 387 U. S. 105, 107 (1967). That the named defendants are local officials is irrelevant where, as here, those officials are “functioning pursuant to a statewide policy and performing a state function.” Moody v. Flowers, supra, at 102; Spielman Motor Sales Co. v. Dodge, supra, at 94-95. The convening of a three-judge District Court was proper.
II
Appellants’ amended complaint requested the District Court to declare the Alabama statutes unconstitutional and to enjoin their enforcement insofar as they authorize the extraterritorial exercise of municipal powers. Seizing on the District Court’s observation that “ [appellants] do not seek extension of the franchise to themselves,” appellants suggest that their complaint was dismissed because they sought the wrong remedy.
The unconstitutional predicament in which appellants assertedly found themselves could be remedied in only two ways: (1) the city’s extraterritorial power could be negated by invalidating the State’s authorizing statutes or (2) the right to vote in municipal elections could be extended to residents of the police jurisdiction. We agree with appellants that a federal court should not dismiss a meritorious constitutional claim because the complaint seeks one remedy rather than another plainly appropriate one. Under the Federal Rules of Civil Procedure “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” Rule 54(c). Thus, although the prayer for relief may be looked to for illumination when there is doubt as to the substantive theory under which a plaintiff is proceeding, its omissions are not in and of themselves a barrier to redress of a meritorious claim. See, e. g., 6 J. Moore, W. Taggart, & J. Wicker, Moore’s Federal Practice ¶ 54.62, pp. 1261-1265 (2d ed. 1976). But while a meritorious claim will not be rejected for want of a prayer for appropriate relief, a claim lacking substantive merit obviously should be rejected. We think it is clear from the pleadings in this case that appellants have alleged no claim cognizable under the United States Constitution.
A
Appellants focus their equal protection attack on § 11-40-10, the statute fixing the limits of municipal police jurisdiction and giving extraterritorial effect to municipal police and sanitary ordinances. Citing Kramer v. Union Free School Dist., 395 U. S. 621 (1969), and cases following in its wake, appellants argue that the section creates a classification infringing on their right to participate in municipal elections. The State’s denial of the franchise to police jurisdiction residents, appellants urge, can stand only if justified by a compelling state interest.
At issue in Kramer was a New York voter qualification statute that limited the vote in school district elections to otherwise qualified district residents who (1) either owned or leased taxable real property located within the district, (2) were married to persons owning or leasing qualifying property, or (3) were parents or guardians of children enrolled in a local district school for a specified time during the preceding year. Without deciding whether or not a State may in some circumstances limit the franchise to residents primarily interested in or primarily affected by the activities of a given governmental unit, the Court held that the statute was not sufficiently tailored to meet that state interest since its classifications excluded many bona fide residents of the school district who had distinct and direct interests in school board decisions and included many residents whose interests in school affairs were, at best, remote and indirect.
On the same day, in Cipriano v. City of Houma, 395 U. S. 701 (1969), the Court upheld an equal protection challenge to a Louisiana law providing that only "property taxpayers” could vote in elections called to approve the issuance of revenue bonds by a municipal utility system. Operation of the utility system affected virtually every resident of the city, not just property owners, and the bonds were in no way financed by property tax revenue. Thus, since the benefits and burdens of the bond issue fell indiscriminately on property owner and nonproperty owner alike, the challenged classification impermissibly excluded otherwise qualified residents who were substantially affected by and directly interested in the matter put to a referendum. The rationale of Cipriano was subsequently called upon to invalidate an Arizona law restricting the franchise to property taxpayers in elections to approve the issuance of general obligation municipal bonds. Phoenix v. Kolodsiejski, 399 U. S. 204 (1970).
Appellants also place heavy reliance on Evans v. Cornman, 398 U. S. 419 (1970). In Evans the Permanent Board of Registry of Montgomery County, Md., ruled that persons living on the grounds of the National Institutes of Health (NIH), a federal enclave located within the geographical boundaries of the State, did not meet the residency requirement of the Maryland Constitution. Accordingly, NIH residents were denied the right to vote in Maryland elections. This Court rejected the notion that persons living on NIH grounds were not residents of Maryland:
“Appellees clearly live within the geographical boundaries of the State of Maryland, and they are treated as state residents in the census and in determining congressional apportionment. They are not residents of Maryland only if the NIH grounds ceased to be a part of Maryland when the enclave was created. However, that 'fiction of a state within a state’ was specifically rejected by this Court in Howard v. Commissioners of Louisville, 344 U. S. 624, 627 (1953), and it cannot be resurrected here to deny appellees the right to vote.” Id., at 421-422.
Thus, because inhabitants of the NIH enclave were residents of Maryland and were "just as interested in and connected with electoral decisions as they were prior to 1953 when the area came under federal jurisdiction and as their neighbors who live off the enclave,” id., at 426, the State could not deny them the equal right to vote in Maryland elections.
From these and our other voting qualifications cases a common characteristic emerges: The challenged statute in each case denied the franchise to individuals who were physically resident within the geographic boundaries of the governmental entity concerned. See, e. g., Hill v. Stone, 421 U. S. 289 (1975) (invalidating provision of the Texas Constitution restricting franchise on general obligation bond issue to residents who had “rendered” or listed real, mixed, dr personal property for taxation in the election district); Harper v. Virginia Board of Elections, 383 U. S. 663 (1966) (invalidating Virginia statute conditioning the right to vote of otherwise qualified residents on payment of a poll tax); cf. Turner v. Fouche, 396 U. S. 346 (1970) (invalidating Georgia statute restricting county school board membership to residents owning real property in the county). No decision of this Court has extended the “one man, one vote” principle to individuals residing beyond the geographic confines of the governmental entity concerned, be it the State or its political subdivisions. On the contrary, our cases have uniformly recognized that a government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders. See, e. g., Dunn v. Blumstein, 405 U. S. 330, 343-344 (1972); Evans v. Comman, supra, at 422; Kramer v. Union Free School Dist., 395 U. S., at 625; Carrington v. Rash, 380 U. S. 89, 91 (1965); Pope v. Williams, 193 U. S. 621 (1904). Bona fide residence alone, however, does not automatically confer the right to vote on all matters, for at least in the context of special interest elections the State may constitutionally disfranchise residents who lack the required special interest in the subject matter of the election. See Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U. S. 719 (1973); Associated Enterprises, Inc. v. Toltec Watershed Improvement Dist., 410 U. S. 743 (1973).
Appellants’ argument that extraterritorial extension of municipal powers requires concomitant extraterritorial extension of the franchise proves too much. The imaginary line defining a city’s corporate limits cannot corral the influence of municipal actions. A city’s decisions inescapably affect individuals living immediately outside its borders. The granting of building permits for high rise apartments, industrial plants, and the like on the city’s fringe unavoidably contributes to problems of traffic congestion, school districting, and law enforcement immediately outside the city. A rate change in the city’s sales or ad valorem tax could well have a significant impact on retailers and property values in areas bordering the city. The condemnation of real property on the city’s edge for construction of a municipal garbage dump or waste treatment plant would have obvious implications for neighboring nonresidents. Indeed, the indirect extraterritorial effects of many purely internal municipal actions could conceivably have a heavier impact on surrounding environs than the direct regulation contemplated by Alabama’s police jurisdiction statutes. Yet no one would suggest that nonresidents likely to be affected by this sort of municipal action have a constitutional right to participate in the political processes bringing it about. And unless one adopts the idea that the Austinian notion of sovereignty, which is presumably embodied to some extent in the authority of a city over a police jurisdiction, distinguishes the direct effects of limited municipal powers over police jurisdiction residents from the indirect though equally dramatic extraterritorial effects of purely internal municipal actions, it makes little sense to say that one requires extension of the franchise while the other does not.
Given this country’s tradition of popular sovereignty, appellants’ claimed right to vote in Tuscaloosa elections is not without some logical appeal. We are mindful, however, of Mr. Justice Holmes’ observation in Hudson Water Co. v. McCarter, 209 U. S. 349, 355 (1908):
“All rights tend to declare themselve absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.... The boundary at which the conflicting interests balance cannot be determined by any general formula in advance, but points in the line, or helping to establish it, are fixed by decisions that this or that concrete case falls on the nearer or farther side.”
The line heretofore marked by this Court’s voting qualifications decisions coincides with the geographical boundary of the governmental unit at issue, and we hold that appellants’ case, like their homes, falls on the farther side.
B
Thus stripped of its voting rights attire, the equal protection issue presented by appellants becomes whether the Alabama statutes giving extraterritorial force to certain municipal ordinances and powers bear some rational relationship to a legitimate state purpose. San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 (1973). “The Fourteenth Amendment does not prohibit legislation merely because it is special, or limited in its application to a particular geographical or political subdivision of the state.” Fort Smith Light Co. v. Paving Dist., 274 U. S. 387, 391 (1927). Rather, the Equal Protection Clause is offended only if the statute’s classification “rests on grounds wholly irrelevant to the achievement of the State’s objective.” McGowan v. Maryland, 366 U. S. 420, 425 (1961); Kotch v. Board of River Port Pilot Comm’rs, 330 U. S. 552, 556 (1947).
Government, observed Mr. Justice Johnson, “is the science of experiment,” Anderson v. Dunn, 6 Wheat. 204, 226 (1821), and a State is afforded wide leeway when experimenting with the appropriate allocation of state legislative power. This Court has often recognized that political subdivisions such as cities and counties are created by the State “as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them.” Hunter v. Pittsburgh, 207 U. S. 161, 178 (1907). See also, e. g., Sailors v. Board of Education, 387 U. S., at 108; Reynolds v. Sims, 377 U. S. 533, 575 (1964). In Hunter v. Pittsburgh, the Court discussed at length the relationship between a State and its political subdivisions, remarking: “The number, nature and duration of the powers conferred upon [municipal] corporations and the territory over which they shall be exercised rests in the absolute discretion of the State.” 207 U. S., at 178. While the broad statements as to state control over municipal corporations contained in Hunter have undoubtedly been qualified by the holdings of later cases such as Kramer v. Union Free School Dist., supra, we think that the case continues to have substantial constitutional significance in emphasizing the extraordinarily wide latitude that States have in creating various types of political subdivisions and conferring authority upon them.
The extraterritorial exercise of municipal powers is a governmental technique neither recent in origin nor unique to the State of Alabama. See R. Maddox, Extraterritorial Powers of Municipalities in the United States (1955). In this country 35 States authorize their municipal subdivisions to exercise governmental powers beyond their corporate limits. Comment, The Constitutionality of the Exercise of Extraterritorial Powers by Municipalities, 45 U. Chi. L. Rev. 151 (1977). Although the extraterritorial municipal powers granted by these States vary widely, several States grant their cities more extensive or intrusive powers over bordering areas than those granted under the Alabama statutes.
In support of their.equal protection claim, appellants suggest a number of “constitutionally preferable” governmental alternatives to Alabama's system of municipal police jurisdictions. For example, exclusive management of the police jurisdiction by county officials, appellants maintain, would be more “practical.” From a political science standpoint, appellants’ suggestions may be sound, but this Court does not sit to determine whether Alabama has chosen the soundest or most practical form of internal government possible. Authority to make those judgments resides in the state legislature, and Alabama citizens are free to urge their proposals to that body. See, e. g., Hunter v. Pittsburgh, 207 U. S., at 179. Our inquiry is limited to the question whether “any state of facts reasonably may be conceived to justify” Alabama's system of police jurisdictions, Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U. S., at 732, and in this case it takes but momentary reflection to arrive at an affirmative answer.
The Alabama Legislature could have decided that municipal corporations should have some measure of control over activities carried on just beyond their “city limit” signs, particularly since today’s police jurisdiction may be tomorrow’s annexation to the city proper. Nor need the city’s interests have been the only concern of the legislature when it enacted the police jurisdiction statutes. Urbanization of any area brings with it a number of individuals who long both for the quiet of suburban or country living and for the career opportunities offered by the city’s working environment. Unincorporated communities like Holt dot the rim of most major population centers in Alabama and elsewhere, and state legislatures have a legitimate interest in seeing that this substantial segment of the population does not go without basic municipal services such as police, fire, and health protection. Established cities are experienced in the delivery of such services, and the incremental cost of extending the city’s responsibility in these areas to surrounding environs may be substantially less than the expense of establishing wholly new service organizations in each community.
Nor was it unreasonable for the Alabama Legislature to require police jurisdiction residents to contribute through license fees to the expense of services provided them by the city. The statutory limitation on license fees to half the amount exacted within the city assures that police jurisdiction residents will not be victimized by the city government.
“Viable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions.” Sailors v. Board of Education, 387 U. S., at 110-111. This observation in Sailors was doubtless as true at the turn of this century, when urban areas throughout the country were temporally closer to the effects of the industrial revolution. Alabama’s police jurisdiction statute, enacted in 1907, was a rational legislative response to the problems faced by the State’s burgeoning cities. Alabama is apparently content with the results of its experiment, and nothing in the Equal Protection Clause of the Fourteenth Amendment requires that it try something new.
C
Appellants also argue that “governance without the franchise is a fundamental violation of the due process clause.” Brief for Appellants 28. Support for this proposition is alleged to come from United States v. Texas, 252 F. Supp. 234 (WD Tex.) (three-judge District Court), summarily aff’d, 384 U. S. 155 (1966), which held that conditioning the franchise of otherwise qualified voters on payment of a poll tax denied due process to many Texas voters. Appellants’ argument proceeds from the assumption, earlier shown to be erroneous, supra, at 66-70, that they have a right to vote in Tuscaloosa elections. Their conclusion falls with their premise.
Ill
In sum, we conclude that Alabama’s police jurisdiction statutes violate neither the Equal Protection Clause nor the Due Process Clause of the Fourteenth Amendment. Accordingly, the judgment of the District Court is
Affirmed.
The full text of § 11-40-10 provides:
“The police jurisdiction in cities having 6,000 or more inhabitants shall cover all adjoining territory within three miles of the corporate limits, and in cities having less than 6,000 inhabitants and in
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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sc_casedisposition
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G
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What follows is an opinion from the Supreme Court of the United States. Your task is to 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.
MOOR et al. v. COUNTY OF ALAMEDA et al.
No. 72-10.
Argued February 27, 1973
Decided May 14, 1973
Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 722.
Ronald M. Greenberg argued the cause and filed briefs for petitioners.
Peter W. Davis argued the cause for respondents. With him on the brief was Raoul D. Kennedy.
Mr. Justice Marshall
delivered the opinion of the Court.
This case raises three distinct questions concerning the scope of federal jurisdiction. We are called upon to decide whether a federal cause of action lies against a municipality under 42 U. S. C. §§ 1983 and 1988 for the actions of its officers which violate an individual’s federal civil rights where the municipality is subject to such liability under state law. In addition, we must decide whether, in a federal civil rights suit brought against a municipality’s police officers, a federal court may refuse to exercise pendent jurisdiction over a state law claim against the municipality based on a theory of vicarious liability, and whether a county of the State of California is a citizen of the State for purposes of federal diversity jurisdiction.
In February 1970, petitioners Moor and Rundle filed separate actions in the District Court for the Northern District of California seeking to recover actual and punitive damages for injuries allegedly suffered by them as a result of the wrongful discharge of a shotgun by an Alameda County, California, deputy sheriff engaged in quelling a civil disturbance. In their complaints, petitioners named the deputy sheriff, plus three other deputies, the sheriff, and the County of Alameda as defendants. The complaints alleged both federal and state causes of action.
The federal causes of action against the individual defendants were based on allegations of conspiracy and intent to deprive petitioners of their constitutional rights of free speech and assembly, and to be secure from the deprivation of life and liberty without due process of law. These federal causes of action against the individual defendants were alleged to arise under, inter alia, 42 U. S. C. §§ 1983 and 1985, and jurisdiction was asserted to exist under 28 U. S. C. § 1343.
As to the County, both the federal and state law claims were predicated on the contention that under the California Tort Claims Act of 1963, Cal. Govt. Code §815.2 (a), the County was vicariously liable for the acts of its deputies and sheriff committed in violation of the Federal Civil Rights Act. The federal causes of action against the County were based on 42 U. S. C. §§ 1983 and 1988, and thus jurisdiction was also alleged to exist with respect to these claims under 28 U. S. C. § 1343. Both petitioners argued before the District Court that it had authority to hear their state law claims against the County under the doctrine of pendent jurisdiction. In addition, petitioner Moor who alleged that he was a citizen of Illinois asserted in his complaint that the District Court also had jurisdiction over his state law claim against the County on the basis of diversity of citizenship.
Initially, the defendants answered both complaints denying liability, although the County admitted that it had consented to be sued. Thereafter, the County, arguing lack of jurisdiction, moved to dismiss all of the claims against it in the Rundle suit and to dismiss the federal civil rights claims in the Moor suit. The County relied upon this Court’s decision in Monroe v. Pape, 365 U. S. 167, 187-191 (1961), as having resolved that a municipality is not a “person” within the meaning of 42 U. S. C. § 1983, and on this basis alone it considered the civil rights claims against it to be barred. Moreover, in Rundió, the County argued that since there was before the District Court no claim against the County as to which there existed an independent basis of federal jurisdiction, it would be inappropriate to exercise pendent jurisdiction over the state law claim against it.
The District Court agreed with the County’s arguments and granted the motion to dismiss the Rundle suit. It, however, postponed ruling in the Moor case pending consideration of possible diversity jurisdiction over the state law claim against the County in that case. Subsequently, the County sought to have the state law claim in Moor dismissed on the basis that it was not a citizen of California for purposes of diversity jurisdiction. While this motion was pending, a motion for reconsideration of the order dismissing the County was filed in the Rundle case. Following argument with respect to the jurisdictional issues, the District Court entered an order in Moor holding that there was no diversity jurisdiction and incorporating by reference an order filed in the Rundle case which again rejected petitioners’ civil rights and pendent jurisdiction arguments. Upon the request of the petitioners, the District Court, finding “no just reason for delay,” entered a final judgment in both suits with respect to the County under Fed. Rule Civ. Proc. 54 (b), thereby allowing immediate appeal of its jurisdictional decisions.
The two cases were then consolidated for purposes of appeal, and the Court of Appeals for the Ninth Circuit affirmed the District Court with respect to all three issues raised by the two cases, 458 F. 2d 1217 (1972). In addition to rejecting petitioners’ arguments concerning the existence of pendent jurisdiction and diversity jurisdiction over the state law claims, the Court of Appeals disagreed in particular with petitioners’ contention that § 1988 alone established a federal cause of action against the County for their injuries on the basis of California law which created vicarious liability against the County for the actions of its officers that violated petitioners’ federal civil rights. Because of the importance of the questions decided by the Court of Appeals, we granted certiorari. 409 U. S. 841 (1972). For reasons stated below, we now affirm that portion of the Court of Appeals’ decision which held that petitioners had failed to establish a cause of action against the County under 42 U. S. C. §§ 1983 and 1988, and that the trial court properly refused to exercise pendent jurisdiction over the state law claims. We reverse, however, its holding that the County is not a citizen of California for purposes of federal diversity jurisdiction.
I
We consider first petitioners’ argument concerning the existence of a federal cause of action against the County under 42 U. S. C. § 1988. Petitioners’ thesis is, in essence, that under California law the County has been made vicariously liable for the conduct of its sheriff and deputy sheriffs which violates the Federal Civil Rights Acts and that, in the context of this case, § 1988 authorizes the adoption of such state law into federal law in order to render the Civil Rights Acts fully effective, thereby creating a federal cause: of action against the County.
Section 1988 reads, in relevant part, as follows:
“The jurisdiction in civil... matters conferred on the. district courts by [the Civil Rights Acts]..., for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies..., the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil... cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause...
The starting point for petitioners’ argument is this Court’s decision in Monroe v. Pape, 365 U. S. 167 (1961). There the Court held that 42 U. S. C. § 1983, which was derived from § 1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, was intended to provide private parties a cause of action for abuses of official authority which resulted in the deprivation of constitutional rights, privileges, and immunities. At the same time, however, the Court held that a municipality is not a “person” within the meaning of § 1983. Id., at 187 — 191. Petitioners do not squarely take issue with the holding in Monroe concerning the status under § 1983 of public entities such as the County. Instead, petitioners argue that since the construction placed upon § 1983 in Monroe with respect to municipalities effectively restricts the injured party in a case such as this to recovery from the individual defendants, the section cannot be considered to be fully “adapted” to the protection of federal civil rights or is “deficient in the provisions necessary to furnish suitable remedies” within the meaning of § 1988. In petitioners’ view, the personal liability of the individual defendants under § 1983 is, as a practical matter, inadequate because public officers are frequently judgment-proof. Thus, petitioners contend it is appropriate under § 1988 for this Court to adopt into federal law the California law of vicarious liability for municipalities- — that is, the “common law, as modified... by... statutes of the State wherein the court having jurisdiction of such civil... cause is held.” Having thus introduced the State’s law of vicarious liability into federal law through § 1988, they then assert that there is federal jurisdiction to hear their federal claims against the County under 28 U. S. C. § 1343 (4). Section 1343 (4) grants jurisdiction to. the federal district courts to hear any civil action “commenced by any person... [t]o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights and § 1988 is, petitioners say, such an “Act of Congress.”
Petitioners in this case are not asking us to create a substantive federal liability without legislative direction. See United States v. Standard Oil Co., 332 U. S. 301 (1947); cf. United States v. Gilman, 347 U. S. 507 (1954). It is their view, rather, that in § 1988 Congress has effectively mandated the adoption of California’s law of vicarious liability into federal law. It is, of course, not uncommon for Congress to direct that state law be used to fill the interstices of federal law. But in such circumstances our function is necessarily limited. For although Congress may have assigned to the process of judicial implication the task of selecting in any particular case appropriate rules from state law to supplement established federal law, the application of that process is restricted to those contexts in which Congress has in fact authorized resort to state and common law. Cf. Richards v. United States, 369 U. S. 1, 7-8 (1962). Considering § 1988 from this perspective, we are unable to conclude that Congress intended that section, standing alone, to authorize the federal courts to borrow entire causes of action from state law.
First, petitioners’ argument completely overlooks the full language of the statute. Section 1988 does not enjoy the independent stature of an “Act of Congress providing for the protection of civil rights,” 28 U. S. C. § 1343 (4). Rather, as is plain on the face of the statute, the section is intended to complement the various acts which do create federal causes of action for the violation of federal civil rights. Thus, § 1988 specifies that “[t]he jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter [Civil Rights] and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States.” But inevitably existing federal law will not cover every issue that may arise in the context of a federal civil rights action. Thus, § 1988 proceeds to authorize federal courts, where federal law is unsuited or insufficient “to furnish suitable remedies,” to look to principles of the common law, as altered by state law, so long as such principles are not inconsistent with the Constitution and laws of the United States.
The role of § 1988 in the scheme of federal civil rights legislation is amply illustrated by our decision in Sullivan v. Little Hunting Park, 396 U. S. 229 (1969). In Sullivan, the Court was confronted with a question as to the availability of damages in a suit concerning discrimination in the disposition of property brought pursuant to § 1982 which makes no express provision for a damages remedy. The Court concluded that “[t]he existence of a statutory right implies the existence of all necessary and appropriate remedies,” id., at 239, and proceeded to construe § 1988, which provides the governing standard in such a case, to mean “that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes.... The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired.” Id., at 240. Properly viewed, then, § 1988 instructs federal courts as to what law to apply in causes of actions arising under federal civil rights acts. But we do not believe that the section, without more, was meant to authorize the wholesale importation into federal law of state causes of action — not even one purportedly designed for the protection of federal civil rights.
This view is fully confirmed by the legislative history of the statute: Section 1988 was first enacted as a portion of § 3 of the Civil Rights Act of April 9, 1866, c. 31, 14 Stat. 27. Section 1 of that Act is the source of 42 U. S. C. § 1982, the provision under which suit was brought in Sullivan. The initial portion of § 3 of the Act established federal jurisdiction to hear, among other things, civil actions brought to enforce § 1. Section 3 then went on to provide that the jurisdiction thereby established should be exercised in conformity with federal law where suitable and with reference to the common law, as modified by state law, where federal law is deficient. Considered in context, this latter portion of § 3, which has become § 1988 and has been made applicable to the Civil Rights Acts generally, was obviously intended to do nothing more than to explain the source of law to be applied in actions brought to enforce the substantive provisions of the Act, including § 1. To hold otherwise would tear § 1988 loose from its roots in § 3 of the 1866 Civil Rights Act. This we will not do.
There is yet another reason why petitioners' reliance upon § 1988 must fail. The statute expressly limits the authority granted federal courts to look to the common law, as modified by state law, to instances in which that law “is not inconsistent with the Constitution and laws of the United States.'' Yet if we were to look to California law imposing vicarious liability upon municipalities, as petitioners would have us do, the result would effectively be to subject the County to federal court suit on a federal civil rights claim. Such a result would seem to be less than consistent with this Court's prior holding in Monroe v. Pape, 365 U. S., at 187-191, that Congress did not intend to render municipal corporations liable to federal civil rights claims under § 1983. See, e. g., Brown v. Town of Caliente, 392 F. 2d 546 (CA9 1968); Ries v. Lynskey, 452 F. 2d 172, 174-175 (CA7 1971); Brown v. Ames, 346 F. Supp. 1173, 1176 (Minn. 1972); Wilcher v. Gain, 311 F. Supp. 754, 755 (ND Cal. 1970).
Petitioners argue, however, that there is in fact no inconsistency between the interpretation placed upon § 1983 in Monroe and the interpretation of § 1988 for which they now argue here. They suggest that Monroe involved no question of the susceptibility to suit of a municipality which has surrendered its common-law immunity under state law; the interpretation of § 1983 in Monroe was, in their view, premised upon an assumption that the municipality had not been deprived of its immunity. And Congress, petitioners argue, did not intend to exclude from the reach of § 1983 municipalities that have surrendered their immunity from suit under state law. Thus, they conclude that in a case such as this, where the municipality has lost its immunity, there is no inconsistency between § 1983 and the introduction of the state cause of action against the County into federal law under § 1988.
In effect, petitioners are arguing that their particular actions may be properly brought against this County on the basis of § 1983. But whatever the factual premises of Monroe, we find the construction which petitioners seek to impose upon § 1983 concerning the status of municipalities as “persons” to be simply untenable.
In Monroe, the Court, in examining the legislative evolution of the Ku Klux Klan Act of April 20, 1871, which is the source of § 1983, pointed out that Senator Sherman introduced an amendment which would have added to the Act a new section providing expressly for municipal liability in civil actions based on the deprivation of civil rights. Although the amendment was passed by the Senate, it was rejected by the House, as was another version included in the first Conference Committee report. The proposal for municipal liability encountered strongly held views in the House on the part of both its supporters and opponents, but the root of the proposal’s difficulties stemmed from serious legislative concern as to Congress’ constitutional power to impose liability on political subdivisions of the States.
As in Monroe, we have no occasion here to “reach the constitutional question whether Congress has the power to make municipalities liable for acts of its officers that violate the civil rights of individuals.” 365 U. S., at 191. For in interpreting the statute it is not our task to consider whether Congress was mistaken in 1871 in its view of the limits of its power over municipalities; rather, we must construe the statute in light of the impressions under which Congress did in fact act, see Ries v. Lynskey., 452 F. 2d, at 175. In this respect, it cannot be doubted that the House arrived at the firm conclusion that Congress lacked the constitutional power to impose liability upon municipalities, and thus, according to Representative Poland, the Senate Conferees were informed by the House Conferees that the “section imposing liability upon towns and counties must go out or we should fail to agree.” To save the Act, the proposal for municipal liability was given up. It may be that even in 1871 municipalities which were subject to suit under state law did not pose in the minds of the legislators the constitutional problems that caused the defeat of the proposal. Yet nevertheless the proposal was rejected in toto, and from this action we cannot infer any congressional intent other than to exclude all municipalities — regardless of whether or not their immunity has been lifted by state law — -from the civil liability created in the Act of April 20, 1871, and § 1983. Thus, § 1983 is unavailable to these petitioners insofar as they seek to sue the County. And § 1988, in light of the express limitation contained within it, cannot be used to accomplish what Congress clearly refused to do in enacting § 1983.
Accordingly, we conclude that the District Court properly granted the motion to dismiss the causes of action brought against the County by petitioners under § 1983 and § 1988.
II
Although unable to establish a federal cause of action against the County on the basis of the California law imposing vicarious liability on a municipality for the actions of its officers that violate federal civil rights, petitioners contend that the District Court nevertheless had jurisdiction to hear their state law claims of vicarious liability against the County under the doctrine of pendent jurisdiction.
Petitioners rely principally upon the decision in Mine Workers v. Gibbs, 383 U. S. 715, 725 (1966), where the Court eschewed the “unnecessarily grudging” approach of Hurn v. Oursler, 289 U. S. 238 (1933), to the doctrine of pendent jurisdiction. Gibbs involved a suit brought under both federal and state law by a contractor to recover damages allegedly suffered as a result of a secondary boycott imposed upon it by a union. There existed independent federal jurisdiction as to the federal claim, but there was no independent basis of jurisdiction to support the state law claim. Nevertheless, the Court concluded that federal courts could exercise pendent jurisdiction over the state law claim.
In deciding the question of pendent jurisdiction, the Gibbs Court indicated that there were two distinct issues to be considered. First, there is the issue of judicial power to hear the pendent claim. In this respect the Court indicated that the requisite “power” exists
“whenever there is a claim 'arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority...,’ U. S. Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.’ The federal claim must have substance sufficient to confer subject matter jurisdiction on the court.... The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” Id., at 725 (footnotes omitted).
Yet even if there exists power to hear the pendent claim, “[i]t has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them....” Id., at 726. By way of explanation of the considerations which should inform a district court’s discretion, the Court in Gibbs suggested, inter alia, that “[njeedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law,” ibid., and that “reasons independent of jurisdictional considerations, such as the likelihood of jury confusion in treating divergent legal theories of relief, {may] justify separating state and federal claims for trial,” id., at 727. In Gibbs, the Court found that the exercise of pendent jurisdiction over the state law claims was proper both as a matter of power and discretion.
In these cases, there is no question that petitioners’ complaints stated substantial federal causes of action against the individual defendants under 42 U. S. C. § 1983. See Monroe v. Pape, 365 U. S. 167 (1961). Nor is there any dispute that the federal claims against the individual defendants and the state claims against the individual defendants may be said to involve “a common nucleus of operative fact.” But, beyond this, there is a significant difference between Gibbs and these cases. For the exercise of pendent jurisdiction over the claims against the County would require us to bring an entirely new party — a new defendant — into each litigation. Gibbs, of course, involved no such problem of a “pendent party,” that is, of the addition of a party which is implicated in the litigation only with respect to the pendent state law claim and not also with respect to any claim as to which there is an independent basis of federal jurisdiction. Faced with this distinction, the courts below concluded that the exercise of pendent jurisdiction in the context of these cases was inappropriate as a matter of both judicial power and discretion.
As to the question of judicial power, the District Court and Court of Appeals considered themselves bound by the Ninth Circuit’s previous decision in Hymer v. Chai, 407 F. 2d 136 (1969), wherein the court refused to permit the joinder of a pendent plaintiff. Petitioners vigorously attack the decision in Hymer as at odds with the clear trend of lower federal court authority since this Court’s decision in Gibbs. It is true that numerous decisions throughout the courts of appeals since Gibbs have recognized the existence of judicial power to hear pendent claims involving pendent parties where “the entire action before the court comprises but one constitutional ‘case’ ” as defined in Gibbs. Hymer stands virtually alone against this post-Gibbs trend in the courts of appeals, and significantly Hymer was largely based on the Court of Appeals’ earlier decision in Kataoka v. May Department Stores Co., 115 F. 2d 521 (CA9 1940), a decision which predated Gibbs and the expansion of the concept of pendent jurisdiction beyond the narrow limits set by Hurn v. Oursler, supra. Moreover, the exercise of federal jurisdiction over claims against parties as to whom there exists no independent basis for federal jurisdiction finds substantial analogues in the joinder of new parties under the well-established doctrine of ancillary jurisdiction in the context of compulsory counterclaims under Fed. Rules Civ. Proc. 13 (a) and 13 (h), and in the context of third-party claims under Fed. Rule Civ. Proc. 14 (a). At the same time, the County counsels that the Court should not be quick to sweep state law claims against an entirely new party within the jurisdiction of the lower federal courts which are courts of limited jurisdiction — a jurisdiction subject, within the limits of the Constitution, to the will of Congress, not the courts. Whether there exists judicial power to hear the state law claims against the County is, in short, a subtle and complex question with far-reaching implications. But we do not consider it appropriate to resolve this difficult issue in the present case, for we have concluded that even assuming, arguendo, the existence of power to hear the claim, the District Court, in exercise of its legitimate discretion, properly declined to join the claims against the County in these suits.
The District Court indicated, and the Court of Appeals agreed, that exercise of jurisdiction over the state law claims was inappropriate for at least two reasons. First, the District Court pointed out that it “would be called upon to resolve difficult questions of California law upon which state court decisions are not legion.” In addition, the court felt that “with the introduction of a claim against the County under the California Tort Claims Act, with the special defenses available to the County, the case” which will be tried to a jury, “could become unduly complicated.” As is evident from this Court’s decision in Gibbs, 383 U. S., at 726-727, the unsettled nature of state law and the likelihood of jury confusion were entirely appropriate factors for the District Court to consider. And those factors had to be weighed by the District Court against the economy which might be achieved by trying the petitioners’ claims against both the police and the County in single proceedings. In light of the broad discretion which district courts must be given in evaluating such matters, we cannot say that the District Judge in these cases struck the balance improperly. We therefore hold that the District Court did not err, as a matter of discretion, in refusing to exercise pendent jurisdiction over petitioners’ claims against the County.
Ill
There remains, however, the question whether the District Court had jurisdiction over petitioner Moor’s state law claim against the County on the basis of diversity of citizenship, 28 U. S. C. § 1332 (a). Petitioner Moor, a citizen of Illinois, contends that the County is a citizen of California for the purposes of federal diversity jurisdiction. The District Court concluded otherwise, however. For while acknowledging that there exists a substantial body of contrary authority, it considered itself “bound to recognize and adhere to the Ninth Circuit decisions which hold that California counties and other subdivisions of the State are not ‘citizens’ for diversity purposes,” see Miller v. County of Los Angeles, 341 F. 2d 964 (CA9 1965); Lowe v. Manhattan Beach City School Dist., 222 F. 2d 258 (CA9 1955). Not surprisingly, the Court of Appeals also adhered to its prior precedents.
There is no question that a State is not a “citizen” for purposes of the diversity jurisdiction. That proposition has been established at least since this Court’s decision in Postal Telegraph Cable Co. v. Alabama, 155 U. S. 482, 487 (1894). See also Minnesota v. Northern Securities Co., 194 U. S. 48, 63 (1904). At the same time, however, this Court has recognized that a political subdivision of a State, unless it is simply “the arm or alter ego of the State,” is a citizen of the State for diversity purposes. See, e. g., Bullard v. City of Cisco, 290 U. S. 179 (1933); Loeb v. Columbia Township Trustees, 179 U. S. 472, 485-486 (1900); Chicot County v. Sherwood, 148 U. S. 529, 533-534 (1893); Lincoln County v. Luning, 133 U. S. 529 (1890); Cowles v. Mercer County, 7 Wall. 118 (1869). The original source of this latter principle was the rule that corporations are citizens of the State in which they are formed, and are subject as such to the diversity jurisdiction of the federal courts. See, e. g., Louisville, C. & C. R. Co. v. Letson, 2 How. 497, 558-559 (1844); Barrow S. S. Co. v. Kane, 170 U. S. 100, 106 (1898). Thus, in the seminal case of Cowles v. Mercer County, supra, the Court held without hesitation that an Illinois county, which under Illinois law was a “body politic and corporate” and had been authorized to sue and be sued, was subject to federal diversity jurisdiction as a citizen of the State of Illinois. The principle first announced in Cowles has become so firmly rooted in federal law that we were able to say only last Term that “[i]t is well settled that for purposes of diversity of citizenship, political subdivisions are citizens of their respective States....” Illinois v. City of Milwaukee, 406 U. S. 91, 97 (1972).
The County in this case contends, however, that unlike the counties of most States, it is not a municipal corporation or an otherwise independent political subdivision, but that it is, under California law, nothing more than an agent or a mere arm of the State itself. In particular, the County cites to us Art. 11, § 1 (a), of the California Constitution which provides that “[t]he State is divided into counties which are legal subdivisions of the State.” The County thus apparently believes its status, for purposes of the diversity jurisdiction, to be governed by Postal Telegraph Cable rather than by Cowles and its progeny. Despite the County's contentions, a detailed examination of the relevant provisions of California law — beyond simply the generalization contained in Art. 11, § 1, of the state constitution— convinces us that the County cannot be deemed a mere agent of the State of California.
Most notably, under California law a county is given “corporate powers” and is designated a “body corporate and politic.” In this capacity, a county may sue and be sued, and, significantly for purposes of suit, it is deemed to be a “local public entity” in contrast to the State and state agencies. In addition, the county, and from all that appears the county alone, is liable for all judgments against it and is authorized to levy taxes to pay such judgments. A California county may also sell, hold, or otherwise deal in property, and it may contract for the construction and repairs of structures. The counties also are authorized to provide a variety of public services such as water service, flood control, rubbish disposal, and harbor and airport facilities. Financially, the counties are empowered to issue general obligation bonds payable from county taxes. Such bonds create no obligation on the part of the State, except that the State is authorized to intervene and to impose county taxes to protect the bondholders if the county fails to fulfill its obligations voluntarily. In sum, these provisions strike us as persuasive indicia of the independent status occupied by California counties relative to the State of California.
But even if our own examination were not sufficient for present purposes, we have the clearest indication possible from California’s Supreme Court of the status of California’s counties. In People ex rel. Younger v. County of El Dorado, 5 Cal. 3d 480, 487 P. 2d 1193 (1971), the Attorney General of the State sought a writ of mandate against two California counties to compel them to pay out certain allotted monies. Under state law, such a writ may be issued only to any “inferior tribunal, corporation, board, or person.” Cal. Civ. Proc. Code § 1085 (emphasis added). In holding that the writ could be issued against the counties, the California Supreme Court said:
“While it has been said that counties are not municipal corporations but are political subdivisions of the state for purposes of government..., counties have also been declared public corporations or quasi-corporations.... In view of Government Code section 23003, which provides that a county is ‘a body corporate and [politic],’ and section 23004, subdivision (a) of the same code, which states that counties may sue and be sued, we think that a county is sufficiently corporate in character to justify the issuance of a writ of mandate to it.” 5 Cal. 3d, at 491 n. 12, 487 P. 2d, at 1199 n. 12 (emphasis added).
See also Pitchess v. Superior Court, 2 Cal. App. 3d 653, 656, 83 Cal. Rptr. 41, 43 (1969).
We do not lightly reject the Court of Appeals’ previous conclusion that California counties are merely part of the State itself and as such are not citizens of the State for diversity purposes. But in light of both the highest state court’s recent determination of the corporate character of counties and our own examination of relevant California law, we must conclude that this County has a sufficiently independent corporate character to dictate that it be treated as a citizen of California under our decision in Cowles v. Mercer County, supra.
Thus, we hold that petitioner Moor’s state law claim against the County is within the diversity jurisdiction.
Accordingly, we reverse the judgment of the Court of Appeals in this respect and remand this case to the District Court for further proceedings consistent with this opinion.
It is so ordered.
Named as plaintiffs in the Rundle case in addition to petitioner William D. Rundle, Jr., were his guardian ad litem, William D. Rundle, and Sarah Rundle. William D. Rundle and Sarah Rundle are also petitioners here, but for ease of discussion we will refer simply to petitioner Rundle.
Neither complaint specifically states any claim for equitable relief. Furthermore, the complaints contain no allegations of an ongoing course of conduct, irreparable injury, inadequacy of legal remedy, or other similar allegations generally found in complaints seeking equitable relief. Throughout the course of this litigation the petitioners have given no indication that they seek equitable, as well as legal, relief. Before this Court the petitioners state nothing more than that “[p]laintiffs in both eases seek damages from the defendants....” Brief for Petitioners 4. Therefore, the question on which our Brother Douglas hinges his dissent — namely, whether a municipality may be sued for equitable relief under § 1983 — simply is not presented here.
Although the County vigorously disputes the petitioners’ construction of § 815.2 (a) of the California Tort Claims Act, we do not pass upon the parties’ conflicting constructions since the question was not decided by either of the courts below.
In their complaints, petitioners also asserted causes of action under 42 U. S. C. §§ 1981 and 1986. But before this Court petitioners have restricted their arguments to §§ 1983 and 1988. Hence, only those sections are now before us.
Petitioner Rundle alleged in his complaint that he was a citizen of California, and therefore he was unable to assert jurisdiction over his state law claims on the basis of diversity of citizenship.
See Answer to Complaint, Moor v. Madigan, App. 12; Answer to Complaint, Bundle v. Madigan, App. 29.
Subsequent to this decision with respect to the County, the District Court denied the individual defendants’ motion to dismiss or, in the alternative, for summary judgment. The District Court also denied petitioners’ motion for summary judgment. See Ex. A to Reply Brief for Petitioners.
See 42
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_numappel
|
99
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
GENERAL GLASS INDUSTRIES CORPORATION, on behalf of itself, and all others similarly situated, v. MONSOUR MEDICAL FOUNDATION; Monsour Medical Center, individually and as successor to Keystone Medical Management Company; William J. Monsour, M.D.; and A.V. Papa, Jr.; Constance B. Foster, Insurance Commissioner of the Commonwealth of Pennsylvania, as Statutory Liquidator of Keystone Medical Services, Inc., Inter-venor in D.C., General Glass Industries Corporation, Appellant.
No. 91-3839.
United States Court of Appeals, Third Circuit.
Argued May 19, 1992.
Decided Aug. 17, 1992.
Fredric E. Orlansky (argued), Vincent A. DeFalice, Riley & DeFalice, P.C., Pittsburgh, Pa., Lewis B. Gardner, General Glass Industries Corp., Jeanette, Pa., for appellant General Glass Industries Corp.
Jerome Cochran (argued), Alan A. Gar-finkel, Klett, Lieber, Rooney & Schorling, Pittsburgh, Pa., for Monsour Medical Foundation, Monsour Medical Center, Inc. and Al Papa, Jr.
Kathryn L. Simpson (argued), Grogan, Graffam, McGinley & Lucchino, P.C., Pittsburgh, Pa., for Constance B. Foster.
Robert Pfaff, Pfaff, McIntyre, Dugas & Hartye, Hollidaysburg, Pa., for William J. Monsour, M.D.
Before: HUTCHINSON, COWEN and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.
This appeal by General Glass Industries Corporation (“GGI”) requires us to determine whether a complaint asserting causes of action, some of which are not derivative of the causes of action maintained by the intervenor, the Insurance Commissioner'of the Commonwealth of Pennsylvania (“Commissioner”) in state liquidation proceedings against an insolvent insurer, may be dismissed by the district court on the grounds of abstention pursuant to Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). We will vacate the district court’s abstention order and remand to the district court to stay this action pending conclusion of the state court proceedings.
I.
Keystone Medical Management Company, a named defendant in the action brought by GGI, had established a health care company, Keystone Medical Services, Inc., which had sold employee health insurance coverage to GGI in December, 1987. On September 4, 1990, the Commonwealth Court of Pennsylvania granted the petition of the Commissioner and issued an amended order for the liquidation of the insolvent Keystone Medical Services, Inc. In November, 1990, GGI filed a complaint in the United States District Court for the Western District of Pennsylvania, asserting RICO, ERISA and state tort law claims against Monsour Medical Foundation, Monsour Medical Center individually and as successor to Keystone Medical Management Company, William Monsour, M.D., and A.V. Papa, Jr.
On February 20, 1991, and thereafter on March 27, 1991, first Monsour, and then the Commissioner who had been granted intervention, moved to dismiss the complaint of GGI, arguing that the district court should abstain from exercising its jurisdiction, so as not to interfere with the liquidation proceedings which were continuing in state court.
GGI opposed these motions on the grounds that abstention was not warranted because GGI’s claims against Monsour were not derivative of the Commissioner’s actions, and were not available to, and could not be prosecuted by, the Commissioner. The Commissioner, while arguing for abstention, nevertheless stated that it had no objection to a stay of the federal action pending resolution of the state court suit.
The district court referred the motions to dismiss to a Magistrate Judge for decision. After discussing abstention under both Burford and Colorado River Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), the Magistrate Judge recommended that the motions to dismiss be granted on the basis of Burford abstention, fearing that if the plaintiff’s action were allowed to continue, it would disrupt the ongoing state court liquidation proceedings. Those proceedings involve the acquisition, marshall-ing, and distribution of assets of the insolvent insurer, Keystone Medical Services, Inc. (“KMS”). The Magistrate Judge held that these same assets were the subject of GGI’s complaint. On November 1, 1991, the district court granted the Commissioner’s and Monsour’s motions to dismiss based on the report and recommendation of the Magistrate Judge. GGI filed a timely Notice , of Appeal.
II.
GGI is a manufacturer of sheet glass and employs approximately 300 workers. GGI had purchased employee health insurance from Keystone Medical Services, Inc. The complaint of GGI asserted claims under federal and state law. GGI alleged, among other claims, that the defendants had wasted KMS’ assets, unlawfully converted health insurance premiums, and had breached fiduciary duties owing to employee welfare benefit plans of GGI. GGI also alleged that, by the time that liquidation of KMS was ordered, KMS had unpaid medical claims of $1.7 million, of which $250,000 had been incurred by GGI employees.
GGI’s complaint also charged Monsour with various misrepresentations of fact. These misrepresentations, it. is alleged, caused GGI to incur higher health insurance premium costs for the remainder of its contract with KMS, and also caused damage to GGI’s reputation. It was alleged as well that GGI employees suffered damages by having to pay medical claims that should have been paid by KMS, and by having health insurance benefits decrease and premium contributions increase, in order to pay for health benefits of a lesser quality.
The RICO and ERISA counts of GGI’s complaint essentially stem from the activities of Monsour in its conduct of KMS’ business. Similarly, the state law claims refer to the various intentional actions of Monsour which GGI contends resulted in the legal and equitable claims for which relief is sought.
The district court, adopting the Report and Recommendation of the Magistrate Judge, rejected the arguments for abstention based on Colorado River abstention. The district court recognized that GGI raised claims under ERISA, RICO and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, that may not be raised by the Commissioner in state court proceedings, and thus the federal and state court proceedings were not truly du-plicative as required for a district court to abstain under Colorado River. The district court held, however, that Monsour and the Commissioner had met the requirements for Burford abstention and thus dismissed GGI’s complaint. It found that the regulation of an insolvent insurer and its rehabilitation presented the type of complex regulatory scheme, reflecting a policy of substantial state concern, which is among the prerequisites for Burford abstention.
Turning to other factors supporting Bur-ford abstention, the district court contrasted GGI’s claims with those presented by University of Maryland v. Peat Marwick Main & Co., 923 F.2d 265 (3d Cir.1991), which the district court found “instructive since it sets forth a framework for determining when a suit poses a danger of interfering with a state’s efforts to regulate matters of public concern.” (A 263). In Peat Marwick, we reversed the decision of the district court to abstain under Burford. We held, among other things, that the claims against the independent auditor, which had certified financial statements of the insurer on which the insureds had relied to their detriment, did not threaten to disrupt the regulatory scheme at issue in the ongoing liquidation proceedings.
In Peat Marwick, the plaintiffs’ claims were held to be non-derivative because they were brought against an auditor of the insurance company and were based on breaches of duty to the plaintiffs and not to the insolvent insurer, id. at 274. Although the district court conceded (A 267-68) that GGI had raised claims in federal court that could not be raised in the state proceeding, and GGI sought relief to which the Commissioner was not entitled, it also found that GGI was seeking the same funds pursued by the Commissioner. The district court, by adopting the Magistrate Judge’s report, held that any funds improperly converted from KMS were part of the “estate” of KMS, and GGI’s action would thus interfere with the ongoing state proceedings. It concluded, therefore, that abstention was appropriate and dismissed GGI’s complaint.
The Magistrate Judge, in his opinion, reported that “[b]oth defendants and inter-venor [Commissioner] argue in the alternative that this case should be stayed until such time as the state court liquidation is completed.” (A 260).
Because the district court dismissed GGI’s complaint, we must take GGI’s allegations to be true. See Monaghan v. Deakins, 798 F.2d 632 (3d Cir.1986), aff'd, 484 U.S. 193, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988). We review the propriety of the district court’s order which abstained from exercising jurisdiction to avoid interfering with state administrative proceedings, under a standard wherein “the underlying legal questions are subject to plenary review, although the decision to abstain is reviewed for abuse of discretion.” Peat Marwick, 923 F.2d at 269.
III.
In Burford v. Sun Oil, 319 U.S. 315, 332, 63 S.Ct. 1098, 1106, 87 L.Ed. 1424 (1943), the Supreme Court considered abstention appropriate where “questions of regulation of the industry ... so clearly involves [sic] basic problems of [state] policy that equitable discretion should be exercised to give the [state] courts the first opportunity to consider them.” Burford had been granted a permit by the Texas Railroad Commission to drill four wells in an East Texas oil field. Sun Oil Company attacked the validity of the Commission’s order. It did so in federal district court. The court, after discussing the complexities of the Texas regulatory system, under which the spacing of wells and the rights of separate owners to a share of the common oil reservoir is regulated, held that the federal courts should abstain, thereby declining to exercise their jurisdiction in such a case to avoid interruption, delay, and conflict with the operation of the state administrative scheme.
The abstention doctrine announced in Burford “limited interference by the lower federal courts in determinations of inherently local matters made by state courts pursuant to a complex state regulatory scheme.” Peat Marwick, 923 F.2d at 270. In cases where “certain ‘traditional abstention requirements’ ” are present, id. the district court may exercise its discretion to abstain. The Supreme Court has summarized the requirements for Burford abstention thus:
Where timely and adequate state court review is available, a federal court sitting in equity must decline to interfere with the proceedings and orders of state administrative agencies: (1) when there are “difficult questions of state law bearing upon public problems of substantial public import whose importance transcends the results in the case at bar”; or (2) where the “exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.”
New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 2514, 105 L.Ed.2d 298 (1989) (citation omitted).
Pursuant to the McCarran-Ferguson Act, 15 U.S.C. § 1012, Congress ensured that the power to regulate the insurance industry is vested in the states:
No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance
Where the district court’s exercise of jurisdiction would interfere with ongoing proceedings pursuant to a state regulatory scheme, such as a regulatory scheme concerning the insurance industry, the district court, under a Burford analysis, may abstain. Pennsylvania has expressed its strong state interest in regulating insurance companies through a complex regulatory scheme, known as the Insurance Department Act, 40 Pa.Cons.Stat.Ann. § 1 et seq., the stated purpose of which is “the protection of the interests of insureds, creditors, and the public generally.” This purpose is effected through “regulation of the insurance business by procedures and substantive rules on the entire insurance business,” early detection of troubled insurers, with prompt corrective remedial measures, and “efficiency and economy of liquidation” where necessary. See 40 Pa. Cons.Stat.Ann. § 221.1(c). “Generally, Burford abstention is justified where a complex regulatory scheme is administered by a specialized state tribunal having exclusive jurisdiction.” United Services Automobile Ass’n v. Muir, 792 F.2d 356, 364 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 875, 93 L.Ed.2d 830 (1987).
Even in the face of liquidation proceedings instituted against an insolvent insurer pursuant to a regulatory scheme such as Pennsylvania’s, the decision of a district court to abstain remains within the district court’s discretion. In Lac D'Amiante Du Quebec v. American Home Assurance Co., 864 F.2d 1033, 1047 (3d Cir.1988), we refused to
lay down a per se rule that district courts must always abstain from an action against an insurance company the instant a state court places the company in liquidation proceedings. The decision as to whether abstention is appropriate may require an inquiry into the facts of the specific case before the court.
In Lac D'Amiante, 864 F.2d at 1045, we observed that the states have a strong interest in regulation of the insurance industry because
... solvent and healthy insurance coverage is an essential state concern. The McCarran-Ferguson Act specifically provides that it is in the public interest for states to continue serving their traditional role in the federal system and indicates the special status of insurance in the realm of state sovereignty.
In that case, a seller of asbestos sought indemnity from its insurers for sums it had paid out in connection with asbestos-related claims. The defendant insurers were in liquidation proceedings pursuant to the New York regulatory scheme with the New York Superintendent of Insurance as the statutory receiver. We noted “that most courts that have discussed this question have held abstention or stay or dismissal appropriate in the circumstance of a suit against an insurer in liquidation proceedings.” Id.
In Lac D’Amiante, we reversed the district court’s decision not to abstain, holding that the facts of the record in Lac DAmi-ante clearly indicated that “assumption of jurisdiction by the federal court in a suit against an insolvent insurer in liquidation proceedings would be highly destructive of the state's regulatory scheme..” Id. at 1045. In Peat Marwick, we recognized similar concerns, even though we held that claims against Peat Marwick did not involve Pennsylvania’s regulation of insurance companies. We “assume[d], without deciding, that regulation of insolvency and rehabilitation proceedings of insurance companies can provide the ‘complex regulatory scheme’ or ‘coherent policy with respect to a matter of substantial public concern’ that are among the prerequisites for invoking Burford abstention.” 923 F.2d at 270 n. 6.
In Peat Marwick, we examined the appropriate conditions for Burford abstention when deciding an action for damages against an insurance company’s independent auditor. The defendant auditor, Peat Marwick, and the intervenor Commissioner both filed motions to dismiss the federal action. The district court granted the Commissioner’s motion to dismiss on the grounds that it should abstain under Bur-ford.' We reversed the decision of the district court, holding that abstention was not justified in such a case, because “Pennsylvania’s regulatory scheme governing insurance company insolvencies is not concerned with protecting auditors” 923 F.2d at 272, and thus Peat Marwick’s “connection to the state regulatory mechanism (governing insolvency proceedings) that Burford abstention is designed to protect [was] simply too attenuated.” 923 F.2d at 271. We noted that “Burford abstention may be ordered in insurer insolvency cases only where one .of the. parties to the action in which the federal court abstains is the insolvent insurer or its receiver, trustee, officers, and the like.” Id.
A.
As an initial matter, GGI argued that abstention was inappropriate because its complaint seeks money damages at law and GGI argues that a federal court can only abstain under a Burford analysis when considering a claim for equitable relief.
In Lac D'Amiante, 864 F.2d at 1045, we reviewed Supreme Court cases discussing abstention and stated that “these cases suggest that the distinction between legal and equitable relief is no longer important in the abstention context....” However, Lac DAmiante itself addressed a claim for declaratory, not monetary, relief. On the other hand, the Supreme Court in Tafflin v. Levitt, 493 U.S. 455, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990), affirmed a decision to abstain under Burford, in a case involving RICO claims for money damages. But see Peat Marwick, 923 F.2d at 272 (intimating that Burford abstention should not be extended beyond equitable claims).
Decisional authority remains inconclusive as to whether Burford abstention may be ordered only in cases of an equitable nature, or whether, as Lac DAmiante states in dictum, the distinction between legal and equitable relief is not dispositive in abstention cases. Hence, we are hesitant to sustain GGI’s claim that the district court’s abstention order should be reversed, relying solely on the ground that GGI seeks money damages, rather than either declaratory or injunctive relief.
B.
GGI also contends that its claims against Monsour are not derivative of the Commissioner’s action, but are rather claims resulting from breaches of duties owed to GGI by Monsour. GGI points out that its claims are beyond the scope of the Commissioner’s action, arguing, for example, that even if the Commissioner had standing to pursue a RICO claim, the nature of the Commissioner’s claim and the relief that the Commissioner could obtain is vastly different.
In sum, GGI charges that the Commissioner is not seeking, and cannot seek, damages sufficient to make GGI and members of its putative class whole for the injuries that they have suffered by reason of Monsour’s actions. Thus, GGI concludes that, because its claims are materially different from the Commissioner’s and because its claims are non-derivative, the relief which it seeks cannot be satisfied by the Commissioner’s state court proceeding.
On the other hand, the Commissioner argues that GGI’s claims are derivative of the Commissioner’s claims and are the same as those of other KMS-insured claimants on whose behalf the Commissioner is seeking recovery in the liquidation proceedings. Thus, the Commissioner would have us sustain the district court’s abstention order because, as the Commissioner argues, the policies underlying the Pennsylvania insurance regulatory scheme would be frustrated if the district court permitted interference with the state court liquidation proceedings.
We are satisfied that there are differences between the claims asserted by GGI and those available to the Commissioner. See Kelly v. Overseas Investors, Inc., 18 N.Y.2d 622, 272 N.Y.S.2d 773, 219 N.E.2d 288 (1966) (per curiam) (Insurance Commissioner has no standing under Pennsylvania law to assert the creditors’ claims against Defendants who misrepresented company’s assets); Kinter v. Connolly, 233 Pa. 5, 81 A. 905 (1911) (receiver of insolvent insurance company cannot assert the creditors’ claims concerning the misrepresentation of company’s assets that induced the creditors to do business with the company).
We are also satisfied that some of the claims of GGI overlap and are derivative of the claims which the Commissioner is asserting in its state court proceeding. However, we are mindful as well that we should not permit interference in the marshalling of KMS’ assets and that the Commissioner, in the discharge of her duties, should not experience disruption by parallel court actions. Those concerns, because of the nature of GGI’s claims which have yet to be tested at trial, are not entirely resolved either by the principles of Lac D’Amiante, which ordered abstention, or by the principles of Peat Marwick, which did not.
In order to give effect to the teachings of Burford, which require that the Commissioner be allowed to conduct her state court liquidation proceedings without interference, we hold that the district court’s discretion was properly exercised by granting Burford abstention'. We do so, however, only to the extent that GGI’s claims dovetail with, or parallel, those of the Commissioner. To the extent that GGI has asserted claims which are broader than, and different from, the Commissioner’s, we hold that the district court improperly exercised its discretion by dismissing GGI’s action.
We are not called upon here to either identify in detail the particular claims that are broader than, or different from, the Commissioner’s, nor would it be appropriate for us to attempt to identify the parallel claims which GGI and the Commissioner have asserted and which they share. Rather, we will, while sustaining the exercise of Burford abstention, vacate so much of the district court’s order dismissing GGI’s action and provide that, after the state proceedings have been concluded, GGI may, if it desires to pursue any or all of the claims not satisfied through the Commissioner’s liquidation proceedings, prosecute them in the district court.
This disposition will preserve GGI’s claims and will permit GGI, after conclusion of the state proceedings, to specify and evaluate those claims for which relief was not found available in the liquidation action, and to seek redress for such claims in federal court. GGI may then pursue those remaining claims, if any, without having impaired or interfered with the Commissioner’s actions in her liquidation proceedings.
In structuring our present holding, we have been influenced to a degree by our earlier decision in Williams v. Red Bank Bd. of Educ., 662 F.2d 1008 (3d Cir.1981). In Williams, we affirmed an order of abstention under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The district court had dismissed a suit brought under 42 U.S.C. § 1983 by Williams, a teacher who claimed tenure and damages and contended that the filing of administrative charges against her for her behavior in the classroom and at a public meeting of the Board of Education, had violated her constitutional rights. We held that the district court was correct in abstaining in the face of the ongoing state administrative tenure proceeding. However, due to uncertainty as to the relief which Williams might be afforded, and the possibility that claims which Williams might not be able to pursue in the state proceeding might be lost, we directed that a stay, rather than a dismissal of the federal proceedings, be ordered so that Williams’ federal claims might be pursued, if any remained, after the completion of the state proceedings.
Our action in Williams, was followed by a similar action in Monaghan v. Deakins, 798 F.2d 632 (3d Cir.1986), aff'd, 484 U.S. 193, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988). In Deakins, officers of the Division of Criminal Justice in New Jersey had seized the plaintiffs’ papers and records after a search of the premises of the plaintiffs’ corporation. The plaintiffs thereafter filed a complaint pursuant to 42 U.S.C. § 1983, in the District Court for the District of New Jersey, charging that the search was unlawful and seeking damages and a preliminary injunction which would return all the seized documents. The defendant officials moved to dismiss the plaintiffs’ complaint, contending that the district court should abstain because of the then ongoing state (grand jury) proceedings. The district court held that abstention was appropriate and dismissed the complaint, having also held that it would not issue an injunction. On appeal, we affirmed the denial of the preliminary injunction, but also held that the district court had erred in dismissing plaintiffs’ claim for money damages and attorneys’ fees, stating,
it is settled in this circuit that a district court, when abstaining from adjudicating a claim for injunctive relief, should stay and not dismiss accompanying claims for damages and attorney fees when such relief, is not available from the ongoing state proceedings.
Deakins, 798 F.2d at 635.
Thus at the same time that we approved the district court’s abstention order, we directed that the district court stay the plaintiffs’ federal claims that could not be vindicated in the state proceeding. That decision was affirmed by the Supreme Court, stating,
... even if the Younger doctrine requires abstention here, the District Court has no discretion to dismiss rather than to stay claims for monetary relief that cannot.be redressed in the state proceeding.
Deakins v. Monaghan, 484 U.S. 193, 202, 108 S.Ct. 523, 529, 98 L.Ed.2d 529 (1988).
The Court specifically referred to our Williams decision when it said:
In reversing the District Court’s dismissal of the claims for damages and attorney’s fees, the Court of Appeals applied the Third Circuit rule that requires a District Court to stay rather than dismiss claims that are not cognizable in the parallel state proceeding. 798 F.2d, at 635, citing Crane v. Fauver, 762 F.2d 325 (1985) and Williams v. Red Bank Bd. of Ed., 662 F.2d 1008 (1981). The Third Circuit rule is sound. It allows a parallel state proceeding to go forward without interference from its federal sibling, while enforcing the duty of federal courts “to assume jurisdiction where jurisdiction properly exists.” Id. at 1024-
Id. at 202-03, 108 S.Ct. at 529-30.
Thus, the principles of Burford, informed by the instruction of Williams and Deakins, lead us to conclude that the district court’s order of Burford abstention should be sustained, but that GGI’s complaint should not be dismissed. Rather, the district court should have permitted the parallel state proceeding to go forward while retaining jurisdiction over GGI’s action, in order to be certain that non-parallel and non-derivative claims, as well as claims peculiar to GGI alone, might thereafter be prosecuted.
C.
Our disposition, in affirming abstention, but requiring that the district court retain jurisdiction also avoids the troublesome question of whether any of the claims in GGI’s complaint would be barred by an applicable statute of limitations defense.
The district court was evidently satisfied that no limitations bar would prevent GGI from pursuing claims that were not vindicated by the Commissioner’s state court proceedings. Yet, we have held in Bailey v. Ness, 733 F.2d 279 (3d Cir.1984), that even a dismissal without prejudice does not protect against statute of limitations defenses. In Bailey, id. at 283, we said:
A dismissal of a party’s suit, even without prejudice, simply does not protect the party from a statute of limitations problem should the state court proceedings take a long time. The possibility warrants a safeguarding of a party’s interest in being able to bring suit. Consequently, we believe that under such circumstances it is improper to dismiss a party’s claims; a proper course would be to stay the federal court proceedings until the state court proceedings have run their course or have run out of time in which to be brought.
Similarly in Williams, 662 F.2d at 1024 n. 16, we held that the district court should have stayed the federal proceeding so that there was “no possibility of a statute of limitations bar to Williams’ claim, other than may have existed at the time her complaint was filed.” Moreover, in Dea-kins v. Monaghan, 484 U.S. 193, 202, 108 S.Ct. 523, 529, 98 L.Ed.2d 529 (1988), the Supreme Court discussed with approval our decisions concerning the necessity of retaining jurisdiction in the context of abstention under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The limitation concern addressed in Deakins but pertaining to Younger is equally applicable here:
In both Crane v. Fauver, 762 F.2d, at 329, and Williams v. Red Bank Bd. of Educ., 662 F.2d at 1024, n. 16, the Court of Appeals recognized that unless it retained jurisdiction during the state proceeding,. a plaintiff could be barred permanently from asserting his claims in the federal forum by the running of the applicable statute of limitations.
484 U.S. at 203 n. 7, 108 S.Ct. at 530 n. 7.
IV
We will affirm the district court’s Bur-ford abstention order, thereby enabling the Commissioner’s state court action to proceed without interference. At the same time we will vacate the district court’s order which dismissed GGI’s complaint and will remand to the district court with the direction that the district court retain jurisdiction over GGI’s complaint and stay GGI’s action until the conclusion of the Commissioner’s state court action. At that time, if issues remain, which have not been satisfied in the state court action, the district court should, consistent with the foregoing opinion, conduct such further proceedings as may be required.
Each party will bear its own costs.
. For ease of reference throughout this opinion, we will refer to all defendants as "Monsour.”
. Pursuant to the statutory liquidation procedures mandated by 40 Pa.Stat.Ann. §§ 221.1-221.63 (Supp.1991), Keystone’s assets, liabilities, and any causes of action, were placed in the hands of the Commissioner. As part of her actions to recover receivables and all monies diverted by defendants from the insolvent insurer, the Commissioner filed a complaint in the Commonwealth Court of Pennsylvania (No. 308 M.D.1989) against the defendants alleging common law fraud and negligence. The Commissioner sought to recover premium payments converted from Keystone and monies improperly diverted from Keystone to related corporations.
. GGI’s complaint was brought as a class action, comprised of all employers who had contracted for health insurance benefits for their employees from KMS, and non-defendant employees who were beneficiaries of such plans. Although GGI moved for class certification, in light of the dismissal of its complaint, no decision on class certification was ever rendered.
. The jurisdiction of the state courts extends to RICO claims. See Tafflin v. Levitt, 493 U.S. 455, 460, 110 S.Ct. 792, 795, 107 L.Ed.2d 887 (1990) (holding that "with respect to civil claims arising under RICO, we hold that state courts retain their presumptive authority to adjudicate such claims”). In this case, however, it is the policyholder, GGI, not the Commissioner, that has standing to bring a RICO action alleging predicate acts of fraud in the inducement to purchase insurance policies, because the injuries and hence the damages resulting from such activities cannot be claimed as the property of KMS’ estate.
. The Magistrate Judge’s report, adopted by the district court, observed:
It should also be noted that, if plaintiff is entitled to greater relief based upon the claims which are raised herein, he may still obtain that relief after the conclusion of the state court proceedings. The attempt to raise these claims in the federal court, and a refusal on abstention grounds, should work as a tolling of any applicable statute of limitations.
(A 268 n. 1)
. On appeal, at oral argument, all parties were asked if they would unconditionally concede to vacating the district court’s order of dismissal in light of their purported earlier lack of objection to a stay of the proceedings by the district court until such time as the state court liquidation proceedings had been concluded. Monsour’s response was not unconditional, hence this opinion.
. Peat Marwick's motion to dismiss was not decided by the district court, in light of the district court’s order granting the Commissioner’s motion to abstain. 923 F.2d at 267 n. 2.
.GGI posits:
Even if the Insurance Commissioner has standing to assert a RICO claim against Defendants for injuries resulting to Keystone Medical from the unlawful conversion of premium funds, any such claim would be substantially different from the one asserted by GGI in this case. GGI alleges that Defendants engaged in a pattern of racketeering activity arising out of both predicate acts of mail fraud and unlawful conversion of the assets of an employee welfare benefit plan. While the Insurance Commissioner, standing in the shoes of Keystone Medical, might predicate a RICO claim upon the unlawful conversion of premium funds, she would be estopped from relying upon Defendant’s fraudulent solicitation of premiums inuring to the benefit of Keystone Medical. See Cenco, Inc. v. Seidman & Seidman, 686 F.2d 449, Fed.Sec.L.Rep. p. 98615 (7th Cir.1982), cert. denied, 459 U.S. 880, 103 S.Ct. 117 [177, 74 L.Ed.2d 145] (1982).
Appellant’s Brief at 13 n. 1.
. We have determined that a claim is derivative if the injury alleged by the plaintiffs is
"primarily to the corporation, and is an injury to the plaintiff creditor insofar as it decreases the assets of the corporation to which he must look for satisfaction of his debt, then the suit is for a tort suffered by the corporation, and properly brought by the trustee.”
Peat Marwick, 923 F.2d at 273, quoting In re Western World Funding, Inc. 52 B.R. 743, 775 (Bankr.D.Nev.1985).
. The district court acknowledged that the damages sought by GGI exceed the damages sought by the Commissioner and that "the claims presented [by GGI] differ from those in the state court proceeding in that here plaintiff seeks to vindicate the rights of a policyholder, and does not seek recovery on behalf of KMS.” (A 264).
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
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songer_const1
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114
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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 provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Larry Wayne JONES, Ronney David Briggs, Jerry Wayne McKee, Terry Gene Howell, and Dennis Earl Jordan, Appellants, v. James MABRY and Vernon Housewright, former Directors, Arkansas Department of Correction, A.L. Lockhart, Director, and Jerry Campbell, Ronald Dobbs, and Henry Cowan, Appellees.
No. 82-2439.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 3, 1983.
Decided Nov. 30, 1983.
Rehearing Denied Dec. 29, 1983.
H. Edward Skinner, Little Rock, Ark., for appellants.
Steve Clark, Atty. Gen. by C.R. McNair, III, Asst. Atty. Gen., Little Rock, Ark., for appellees.
Before BRIGHT, ARNOLD and FAGG, Circuit Judges.
This case was argued on September 13, 1983. The last post-argument brief was filed on October 3, 1983.
ARNOLD, Circuit Judge.
Larry Wayne Jones, Ronney David Briggs, Jerry Wayne McKee, Terry Gene Howell, and Dennis Earl Jordan, inmates of the Arkansas Department of Correction, brought this action for damages and an injunction against the Director and certain employees of the Department. They allege that they were placed in a special High Security Risk (HSR) classification, with privileges substantially curtailed, without a hearing, and that they were thus deprived of their liberty without due process of law, in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment. The District Court held that the placement of plaintiffs in the HSR classification was a reasonable response to a situation legitimately believed by correctional officials to be an emergency, and that neither state law, administrative regulations, nor past practice had created any “liberty interest” entitling plaintiffs, as a matter of federal constitutional law, to a hearing. We affirm.
I.
Our summary of the facts is taken mainly from the recommended findings and conclusions of the Magistrate to whom this case was referred for an evidentiary hearing. The District Court adopted these findings, and they are not clearly erroneous. All five plaintiffs were confined in the maximum^ security building, known as the East Building, at the Cummins Unit of the Arkansas State Penitentiary. Late in 1978 Jordan was one of a group of inmates who gathered in the dayroom of the East Building and refused to return to their cells. Guards with shotguns and tear gas had to be called in to restore order. On January 1,1979, the other four plaintiffs were part of a group who attempted to escape. Hostages were taken, and ten prisoners, including Briggs, McKee, and Howell, managed to get out of the building before being recaptured. After the inmates had all been subdued, Jerry Campbell, then Warden of the Cummins Unit, alarmed at the apparent loss of control over the maximum-security building, created a new high-security-risk classification, applicable only within the East Building. This classification was not referred to in any of the then-extant handbooks or regulations of the Department. It was essentially an ad hoc reaction to what Campbell took to be a danger of spreading mutiny-
Campbell convened the Cummins Unit Classification Committee, consisting of five correctional officers, to review the files of all inmates in the East Building. Campbell’s memorandum creating the new HSR classification mentioned only one criterion for placement in it — propensity for violence, but he orally advised the Committee that other criteria, arguably distinct, should also be considered, including participation in mutinous activities (here he no doubt had in mind the take-over of the dayroom) and potential for escapes. The Committee placed a number of inmates, including all five plaintiffs here, in the HSR category. As a result, they were forced to wear leg irons and shackles when out of their cells; they were strip-searched whenever entering or leaving their cells; they were required to eat in their cells; and their television, day-room, work, movie, shower, and exercise privileges were restricted. The classification was to be reviewed by the Assistant Warden every 60 days. The inmates were not allowed to attend the meeting, to call witnesses, or to rebut the Committee’s finding that each was an HSR. (Inmates were, however, allowed to be present at the 60-day reviews of their files.) The wearing of leg irons, the most serious of the disabilities imposed, continued until May 16, 1979, for any out-of-cell movement within the East Building, and until October 16, 1979, for movement in the prison yard.
II.
Plaintiffs first argue that they have been deprived of liberty without due process of law, that is, without a hearing at which they could tell their side of the matter. One might think that being required to wear leg irons is a deprivation of “liberty” in anyone’s language, and that the only issue should be whether plaintiffs got the process that was due before being subjected to such a “grievous loss.” But that has not been the course of recent adjudication by the Supreme Court. It has required that some “liberty interest,” created by state law, regulation, or practice, be identified, before passing on to the question of what process is “due.” See Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976): “We reject at the outset the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause .... Similarly, we cannot agree that any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause.”
To supply this requirement plaintiffs point to p. 74 of the Inmate Handbook in effect in January of 1979. The relevant part reads:
Any action which may adversely affect an inmate, such as an increase in security or loss in time-earning status (class), or which lessens an inmate’s privileges will be accompanied by due process arrangements.
It is hard to disagree with plaintiffs’ claim that this provision covered their situation. They did not, by reason of being classified HSR, lose “time-earning status,” but they certainly suffered “an increase in security” and a lessening of “privileges.” The Supreme Court’s recent opinion in Olim v. Wakinekona, _ U.S. _, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), however, is fatal to this argument. There, the Supreme Court held, in a case dealing with a similar provision in Hawaii’s prison regulations, that “an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause.” Olim, 103 S.Ct. at 1748 n. 12. There must be, in addition, some state-created substantive limitation on the prison officials’ discretion, a representation, for example, that the HSR classification would be imposed only on the occurrence of certain acts or events. The Inmate Handbook contained no such representation.
In their post-argument brief plaintiffs contend, citing Hewitt v. Helms, _ U.S. _, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), that the needed substantive limitation on official discretion can be found in the terms of the Warden’s memorandum creating the HSR classification. This directive indicated that the criterion for placing an inmate in HSR would be “propensity for violence.” The State of Arkansas replies that this language is measurably less specific than the Pennsylvania prison regulation held to create a “liberty interest” in Hewitt. We need not pursue that line of argument, because we reject plaintiffs’ reliance on the administrative directive for other reasons. The directive was issued on January 5, 1979, after all of the conduct that triggered official action had occurred. It was not, so far as these plaintiffs were concerned, a prospective statement setting forth the conditions under which inmates would or would not be classified as HSR in the future. It was simply an explanation, issued virtually simultaneously with the creation of the new classification and the placement in it of certain inmates, of what the new classification was all about. It could not have created any expectation on which plaintiffs relied. Moreover, the directive did not purport to be and in fact was not an exhaustive statement of the substantive criteria for inclusion in HSR. The Committee considered other factors, for example likelihood of escape, which may overlap with propensity for violence but are not identical to it. It is also important that the decision to place someone in HSR is more a prediction of likely future conduct than a simple finding of specific past conduct. It is thus a kind of decision less susceptible of justification or refutation under specific substantive criteria. On balance, we conclude that under the most recent guidance from the Supreme Court neither the Inmate Handbook nor the Warden’s administrative directive created a “liberty interest” entitling plaintiffs to any particular process. It is not claimed that HSR decisions were discriminatory or based on some constitutionally prohibited reason.
III.
Plaintiffs next argue that even if the State of Arkansas’s prison regulations and practices did not create a liberty interest in their case, they were entitled to due process because the imposition of the HSR classification was intended to punish them. The courts have distinguished between “punitive segregation, including punitive isolation which is imposed by way of punishment for past misconduct,” and “administrative segregation^ which] is not punitive and ... looks to the present and the future rather than to the past.” Kelly v. Brewer, 525 F.2d 394, 399 (8th Cir.1975). “It is safe to say that in all prisons, except perhaps some extremely minimum security institutions, it is found to be absolutely necessary for a number of non-punitive reasons to segregate individual inmates from the general prison population, and to hold them in segregated status for varying or indefinite periods of time.” Ibid. As long as there is a-procedure for reviewing periodically the situations of inmates who are in administrative segregation, see id. at 400, and there was such a procedure with respect to the HSR classification, due process is satisfied, and no pre-deprivation hearing is required by the federal constitution. If, on the other hand, an inmate is deprived of privileges or placed in a special confinement status in order to punish him for past misconduct, then due process requires some kind of hearing beforehand. Just as pretrial detainees “may not be punished prior to an adjudication of guilt in accordance with due process of law,” Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979), so inmates who have been duly convicted of crime may not be subjected to additional punishment, not contemplated in their sentence of imprisonment, without due process of law.
It is not always easy to distinguish between “punishment” and the imposition of disabilities for administrative or regulatory purposes. An inmate who is forced to wear leg irons every time he leaves his cell may well regard his condition as punishment. The Supreme Court has set out the following test for distinguishing punishment from administrative or regulatory action by prison authorities:
A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].” Thus, if a particular condition or restriction of ... detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal— if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon [inmates]. Courts must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.
Bell v. Wolfish, supra, 441 U.S. at 538-39, 99 S.Ct. at 1873-74 (citations omitted).
The District Court held that the action taken in this case was not punitive, and we agree. It needs to be remembered that the East Building is a special facility. It houses three groups of inmates: those condemned to die, those on administrative segregation, and those on punitive segregation for violations of rules of the institution. Thus, all of the inmates in the East Building, by definition, already present special security problems. On September 9, 1978, the inmates in one wing of the building flooded their cells and destroyed the plumbing and fixtures. Later, two inmates escaped by going out the back door. In October 1978, a group of inmates, including the plaintiff Jordan, gathered in the dayroom, refused to return to their cells, and had to be forcibly removed. This series of incidents reached its climax in the January 1, 1979, escape attempt, which included the taking of hostages. We cannot say that the prison authorities’ reaction to this situation was excessive or exaggerated. It is for them, not us, to make this sort of decision in the first instance, and the courts should intervene only when complaining inmates have carried the burden of proving a clear excess on the part of the defendant officials. These issues, at bottom, are questions of judgment and degree, and on such questions we should be slow to substitute our judgment for that of the officials who must deal with the situation first-hand.
Although courts can no longer remain aloof from inhumane conditions within penitentiaries, the judiciary nonetheless must avoid any attempt to mandate administrative details or requirements. Control of the administrative details of state prisons lies exclusively in the hands of state officials.
Goff v. Menke, 672 F.2d 702, 705 (8th Cir.1982).
Perhaps the most troublesome aspect of the HSR classification was its indefinite duration. It may be, as plaintiffs argue, that they were kept in leg irons longer than necessary, and that the emergency created by the escape attempt had been successfully dealt with before the HSR classification was finally discontinued. Again, the question is not what we would have done had we been in charge of the Cummins Unit of the Arkansas State Penitentiary in January of 1979. It is easy enough, with hindsight, to criticize the reaction of prison officials. Our task is only to decide whether the Federal Constitution was violated, and we are not persuaded that it was. ‘ Under all the circumstances, we believe that the action taken was intended to prevent future escapes and to maintain security within the East Building, and that the means employed were not so clearly disproportionate, when measured against these purposes, as to deserve condemnation as “punitive.” Plaintiffs argue, brief for appellants p. 27, that “[t]he adoption of the HSR classification [was] an attempt by prison officials ... to ‘gain the upper hand,’ that is, to make it easier for them to assert and enforce their authority and dominance over the inmates in the East Building.” We cannot disagree with that characterization, but neither can we agree that such a purpose was improper. The security of the building requires that prison officials have control over it. In short, we reject plaintiffs’ claim that the HSR classification was imposed as punishment.
IY.
Finally, plaintiffs argue that the conditions to which they were subjected were so harsh as to constitute cruel and unusual punishment in violation of the Eighth Amendment, made applicable to the states by the Fourteenth Amendment. Much that we have already said is relevant to explain why we also disagree with this contention. While the measures taken were sharp, even harsh, we cannot agree that they were cruel or barbaric. In Pickens v. Mabry, No. 79-1794 (8th Cir. May 1, 1980) (per curiam), an unpublished opinion, we discussed this same escape incident and the creation of the new HSR classification. That was an action brought by another inmate, not one of the plaintiffs here, involved in the escape attempt. The District Court dismissed Pickens’s complaint, and we affirmed. We said, among other things:
[T]he leg irons requirement was imposed as a security measure in response to the emergency situation that existed in the Cummins Unit after the events of January 1,1979. We note that since that time the requirement has been eased considerably, and now Pickens is required to wear them only when he leaves his building. Under these circumstances, the measure cannot be said to be so excessive or barbaric as to constitute cruel and unusual punishment.
Slip op. p. 2.
Local Rule 8(i) of this Court reads as follows:
CITATION OF UNPUBLISHED OPINION. No party may cite an opinion that was not intended for publication by this or any other federal or state court, except when the cases are related by virtue of an identity between the parties or the causes of action.
In their briefs before this Court, both sides have cited Pickens and argued its effect. It was also cited by the District Court, understandably enough, since it affirmed a judgment of that very court. We see no impropriety in this use of an unpublished opinion. For one thing, the cause of action asserted in Pickens and that asserted here are identical, so citation of the case by the parties is not a violation of Rule 8(i). For another, the Rule does not say that this Court may not cite its own unpublished opinions, and indeed it would be a curious rule of law that would prevent a court from referring to its past decisions, whether published or not. A fundamental duty of courts of justice is to decide like cases alike, and that duty obtains whether a decision has been mailed to West Publishing Company or not. If we were today to announce a different result with respect to the same HSR classification that was before us in Pickens, we would have a difficult time indeed explaining ourselves to the public and the bar.
In any case, and entirely apart from the unpublished opinion in Pickens, we are not persuaded that the measures taken here violated the Eighth Amendment. For reasons already stated, we think they were not so unreasonable or excessive as to be clearly disproportionate to the need reasonably perceived by prison officials at the time. Ordinarily prisoners are entitled to a reasonable amount of exercise, see Campbell v. Cauthron, 623 F.2d 503 (8th Cir.1980), but that rule is not invariable. Here, there were extraordinary circumstances justifying the curtailment for a time of exercise and other privileges.
V.
We thank appointed counsel for appellants for his thorough and persistent representation of their interests. The judgment of the District Court is Affirmed.
. The Hon. Garnett Thomas Eisele, Chief Judge, United States District Court for the Eastern District of Arkansas.
. The Hon. Henry L. Jones, Jr., United States Magistrate for the Eastern District of Arkansas.
. The HSR classification no longer exists. Current regulations require a hearing before an inmate is placed in a segregation classification, except in an emergency, and even then a hearing must be held promptly. They also specify substantive criteria for imposing the classification. Admin.Reg. § 836 (Dec. 30, 1981). The predecessor of this regulation has been held to create a federally protected liberty interest. Finney v. Mabry, 528 F.Supp. 567 (E.D.Ark.1981). Thus, plaintiffs no longer need any injunctive relief. They are pursuing this case solely to obtain a money judgment against the officials who placed them in HSR.
. It is not clear what good a hearing would have done plaintiffs. They do not deny doing the acts that provoked the creation of the HSR classification. Separate disciplinary proceedings were held, and loss of statutory good time resulted. Plaintiffs were permitted to appear before the disciplinary committee, and they do not now complain that that committee failed to accord them due process. In addition, the plaintiff Briggs was convicted of escape in a state court in connection with the incident on January 1, 1979.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_respond1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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.
PILLOIS v. BILLINGSLEY.
No. 112, Docket 21485.
United States Court of Appeals Second Circuit.
Argued Dec. 15, 1949.
Decided Jan. 16, 1950.
Holthusen & Pinkham, New York City (Spencer Pinkham, William F. Purcell, New York City, of counsel), for plaintiff-appellee.
Goldwater & Flynn, New York City (Monroe Goldwater, Milton Small, Louis R. Colman, New York City, of counsel), for defendant-appellant.
Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.
CHASE, Circuit Judge:
This appeal is from a judgment in a suit •brought under the diversity jurisdiction of the court to recover the reasonable value of the appellee’s services, performed at the request of the appellant, in procuring a contract for a corporation of which the appellant was a director.
The complaint alleged that on or about July 9, 1947 the plaintiff and the defendant agreed as follows: that the plaintiff would go to Paris, France at the defendant’s expense and that, if the plaintiff should successfully negotiate with a certain French perfume manufacturer, which made the Le Galion line of perfumes and toilet waters, and secure from it a contract that would grant to Cigogne, Inc., a corporation in which the defendant was interested, the exclusive right to sell Le Galion perfumes on terms acceptable to the defendant and Cigogne, Inc., the defendant would pay to the plaintiff the reasonable value of his ■services in negotiating and securing the contract.
It further alleged that the plaintiff did negotiate and secure a contract from the French manufacturer, which was accepted by Cigogne, Inc., and which granted to it, among other things, the exclusive right to sell Le Galion perfumes in the United States for a period of 99 years. It was also alleged that demand had been made for payment of the fair value of the plaintiff’s services but that no payment had been made.
In his answer, the appellant alleged that Cigogne, Inc., had before July 9, 1947 obtained by assignment a contract under which it secured the exclusive right to represent the same French manufacturer in marketing and distributing the brand of products known as Le Galion “throughout the Western Hemisphere, with the exception of three countries and one British possession” ; and the plaintiff represented that he was able to obtain an extension of that contract “upon the same terms and conditions therein contained” and agreed that “he would, thereafter, set up, organize and supervise the marketing and distribution of the Le Galion products for Cigogne, Inc.”; and that the defendant agreed that he would cause Cigogne, Inc., to employ the plaintiff as its general manager at a stated salary, “such employment to continue as long as the services of the plaintiff were acceptable and satisfactory to Cigogne, Inc.”; and that he “further agreed that if plaintiff procured an extension of the term of the said sales contract upon the same terms and conditions therein contained, plaintiff would receive, as additional compensation, such sum as the defendant in his sole judgment should determine to be reasonable.”
It was further alleged that the plaintiff was employed by Cigogne, Inc., at a salary of $1,000 a month and that such employment continued until about October 24, 1947; that the plaintiff went to Paris at the expense of Cigogne, Inc., with full authority to negotiate and execute a contract on its behalf with the French manufacturer extending the term of the existing contract and that he did so “but upon other and changed terms and conditions rendering said contract substantially less favorable to the said Cigogne, Inc., than the prior sales contract”; and that consequently the plaintiff did not perform the services he had agreed to perform and was not entitled to additional compensation for procuring the contract.
With issue thus joined, the suit was tried by court and it was found on evidence, sufficient though in part conflicting, that the defendant had employed the plaintiff to obtain “from La Soeiete Le Galion a long term exclusive representation of S. A. Le Galion perfumes in the United States of America and elsewhere in the Western Hemisphere in the name of Cigogne, Inc.,” and that the defendant agreed to pay the plaintiff for his services in so doing such sum as the defendant in his sole judgment might decide to be reasonable. It was further found that “the plaintiff went to France and returned with a contract giving Cigogne, Inc., exclusive representation in the United States, Alaska, Puerto Rico, Hawaii, and the Philippine Islands for the Le Galion perfumes for a term of 99 years”; that Cigogne, Inc., accepted the contract and was operating under it; and that the defendant had refused to pay the plaintiff anything for his services in obtaining it and had not given any consideration to determining what would be reasonable compensation for them. It was held that under these circumstances the plaintiff could recover the reasonable value of his services, which the court determined to be $6,000. The judgment entered was for that amount with interest and costs.
The agreement for procuring the contract was part of an over-all arrangement which included the employment of the plaintiff as general manager of Cigogne, Inc., and that over-all arrangement was vague and indefinite in certain respects. According to the plaintiffs version he was given some rights to obtain shares of stock in Cigogne, Inc., and a percentage of its profits, and of its gross sales, all left uncertain in terms and amounts. Consequently, the appellant contends that no enforceable contract was proved.
But this action is not based upon any claim that there was a breach of any agreement to employ appellee as general manager. This suit is confined to the alleged breach of the agreement relating to the procurement of the long term contract between the French manufacturer and Cigog-ne, Inc. That was set forth in a letter which the appellant had his own attorneys prepare and which was addressed to the appellant and signed by the appellee as follows:
“July 9, 1947
“New York City
“Mr. Sherman Billingsley,
“Stork Restaurant Inc.,
“3 East 53rd Street,
“New York, N. Y.
“Dear Sir:
“This will confirm our understanding in connection with the exclusive representation of the S. A. Le Gabon trade mark under contracts of March 20, 1946 and July 25, 1946, now being held by Cigogne, Inc., a New York corporation by assignment from Chapman & Keane, as follows:
“You will provide funds for expenses for my trip to France forthwith for the purpose of my obtaining from La Societe Le Gabon a long term exclusive representation of S. A. Le Gabon perfumes in the United States of America and elsewhere in the western hemisphere in the name of Cigog-ne, Inc., with the right of Cigogne, Inc. to appoint national or area distributors in its discretion.
“My compensation for such services as I may render in this connection shall be such sum as you, in your sole judgment, may decide is reasonable.
“You have made no other commitment and have no other obligation to me of any kind whatsoever.
“Yours very truly
“Raymond Pillois (s)
“Raymond Pillois
This letter, as the trial judge held, shows an agreement which is not too indefinite to be enforced, the appellee having performed his part of it. It entitled him to have the appellant in good faith determine the reasonable value of his services and to pay him that amount. Cf. Ake v. Chancey, 5 Cir., 149 F.2d 310. See 1 Williston on Contracts, § 43. And when the appellant failed to make any determination whatever as to what such services were reasonably worth the appellee became entitled to recover as on a quantum meruit basis. Von Reitzenstein v. Tomlinson, 249 N.Y. 60, 162 N.E. 584; Varney v. Ditmars, 217 N.Y. 223, 111 N.E. 822, 823, 825, Ann. Cas.1916B, 758; Canet v. Smith, 173 App.Div. 241, 159 N.Y.S. 593 (1st Dep’t).
We are here dealing with the legal results which flow from the performance by one party to a contract and not with what legal obligations, if any, are created by a wholly executory contract. See 1 Willis-ton on Contracts § 49. It may be acknowledged that the appellant was not satisfied with the terms of the contract procured from the French manufacturer because, among other things, the territory embraced in the former contract was diminished, but the fact remains that Cigogne, Inc., did accept it, as both its answer admits and the evidence clearly shows.
While it is true that many difficulties are encountered in fixing the reasonable worth of the appellee’s services in procuring the contract, that did not deprive him of the right to compensation. As was observed in respect to an award of damages in Straus v. Victor Talking Mach. Co., 2 Cir., 297 F. 791, 802, “Difficulty of ascertainment is no longer confused with right of recovery.” See also Story Parchment Co. v. Paterson Co., 282 U.S. 555, 562-566, 51 S.Ct. 248, 75 L.Ed. 544; Sheldon v. Metro-Goldwyn Pictures Corporation, 2 Cir., 106 F.2d 45, 51, affirmed, 309 U.S. 390, 60 S.Ct. 681, 84 L.Ed. 825. In this instance the evidence showed that the appellee made a return trip from New York to Paris; that he negotiated for twelve days with the French manufacturer; that it was unusual in this business to enter into such a contract for a term as long as 99 years; and that the appellant was experienced in the perfume business and well and favorably known to M. Vacher who had charge of the negotiations in Paris for the French manufacturer. The appellee testified that his services were worth $100,-000 but the trial judge, who has had many years of experience on the bench, evidently considered that greatly exaggerated. There was other evidence that the contract itself was worth from $25,000 to $50,000 to Cigogne, Inc., and that of course was a relevant matter for consideration in determining the value of appellee’s services. The weight to be given all this evidence was to be decided by the trial judge. We are concerned only with whether there was substantial support for his determination that $6,000 was the reasonable value, and we think there was.
Judgment 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:
|
songer_respond2_3_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 second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Daniel ELLSBERG, et al., Appellants, v. John N. MITCHELL, et al.
No. 84-5574.
United States Court of Appeals, District of Columbia Circuit.
Argued May 1, 1985.
Decided Dec. 5, 1986.
Lawrence Teeter, Los Angeles, Cal., for appellants.
Larry L. Gregg, Atty., U.S. Dept, of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty. and Barbara L. Herwig, Atty., U.S. Dept, of Justice, Washington, D.C., were on the brief, for appellees.
Before ROBINSON and MIKVA, Circuit Judges, and SCALIA, Circuit Justice.
Opinion for the Court filed by Circuit Justice SCALIA.
Justice Scalia was a judge of this Court when this case was briefed and argued, and is a designated Circuit Justice of this Circuit on the date of this decision. See 28 U.S.C. §§ 42, 43(b) (1982).
SCALIA, Circuit Justice:
This is the last in a series of three cases we decide today relating to the qualified immunity defense in the national security context. See Halperin v. Kissinger (“Halperin II”), 807 F.2d 180 (D.C.Cir. 1986); Smith v. Nixon (“Smith II'’) 807 F.2d 197 (D.C. Cir.1986). As in the companion cases, plaintiffs seek damages from federal executive officials for allegedly violating their constitutional and statutory rights by electronically intercepting their telephone conversations. Defendants claim that qualified immunity shields them from liability since the wiretap, having had a validating national security purpose did not violate clearly established law. The issue is whether plaintiffs have presented sufficient concrete facts to avoid summary judgment, without further discovery, on their assertions that defendants’ putative national security purpose was objectively unreasonble and that plaintiffs were subject to other illegal interceptions the existence of which defendants have concealed.
I
This case, the factual background of which is recited more fully in our earlier decision, see Ellsberg v. Mitchell (“Ellsberg I”), 709 F.2d 51, 52-56 (D.C.Cir.1983), originates in the famous “Pentagon Papers” criminal prosecution, United States v. Russo & Ellsberg, Crim. No. 9373 (WNB) (C.D. Cal. dismissed because of government misconduct May 11, 1973), during which the government acknowledged that federal investigators had overheard one or more members of the defense team through warrantless wiretaps. Anthony J. Russo, Jr., a defendant in that case, and his defense lawyer, H. Peter Young, along with Russo’s codefendant and other members of the defense team who are no longer parties here, brought this damage action against several federal agencies and former federal officials, including Attorney General John N. Mitchell, Secret Service Commissioner James J. Rowley, Secretary of State William Rogers, Secretary of Defense Melvin Laird, and Central Intelligence Agency Director Richard Helms. Both plaintiffs alleged that defendants violated their rights under the fourth amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 211 (current version as amended by Title II of the Foreign Intelligence Surveillance Act of 1978, Pub.L. No. 95-511, 92 Stat. 1783, 1796, codified at 18 U.S.C. §§ 2510-2520 (1982)). (First and sixth amendment claims were also raised, but have not been preserved in this appeal.)
In the course of discovery (pursuant to which Mitchell and the defendant agencies were required to acknowledge all wiretaps whose acknowledgement was not precluded by the government’s invocation of the state secrets privilege, see Ellsberg I, 709 F.2d at 59; Ellsberg v. Mitchell, Civ. No. 1879-72 (D.D.C. Nov. 6, 1981) (Order) defendants disclosed that four of Young’s conversations were overheard between September 17, 1970 and June 23, 1971, during wiretap surveillance of the Los Angeles Chapter of the Black Panther Party. Defendants denied the existence of any interceptions of Russo’s conversations and of any other interceptions of Young’s conversations, not covered by the state secrets privilege. (Interceptions covered or not covered by the state secrets privilege will hereinafter be referred to as “privileged” or “nonprivi-leged” interceptions, respectively.)
Despite plaintiffs’ pending discovery requests, the District Court granted summary judgment to defendants Rogers and Rowley on the basis of'plaintiffs’ failure to allege that they engaged in any illegal activity, and to defendants Laird and Helms for plaintiffs’ failure to allege that they were personally involved in the interception, use, or disclosure of any interception of plaintiffs’ communications. Ellsberg v. Mitchell, Civ. No. 1879-72 (D.D.C. Dec. 23, 1982) (Mem.Order), amended by Ellsberg v. Mitchell, Civ. No. 1879-72 (D.D.C. Feb. 1, 1983) (Order). In a separate order, the District Court also dismissed Russo’s suit entirely because he was not overheard on any nonprivileged wiretap. (D.D.C. Dec. 23, 1982) (Order). Later, also despite Young’s pending discovery motions, the District Court granted summary judgment to Mitchell on qualified immunity grounds against Young, finding that the “objective record thus establishes a valid [national security] rationale for the surveillance.” Ellsberg v. Mitchell, Civ. No. 1879-72, slip op. at 4 (D.D.C. July 22,1983) (Mem.Order). Plaintiffs appeal both orders. We address them in reverse order.
II
In granting summary judgment to Mitchell on qualified immunity grounds, the District Court properly reasoned that “Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982),] precludes us from ... asking if national security was the actual or only reason for defendant’s conduct,” Ellsberg, slip op. at 4, where, as here, there is no dispute that defendants purported to act out of national security concerns, see Halperin II, 807 F.2d at 188-89.
Defendants have alleged sufficient objective facts to place the wiretap of the Los Angeles Chapter of the Black Panther Party (which intercepted all four conversations at issue here) in a rational national security context. We so held in a previous challenge to the legality of the same wiretap. Sinclair v. Kleindienst, 645 F.2d 1080, 1082-85 (D.C.Cir.1981). The Black Panther Party was known to have had “contacts with foreign revolutionaries,” id. at 1082, which, we emphasized, “provide the clearest justification for a national security exception to Title III,” id. at 1084; see also Ellsberg I, 709 F.2d at 71 (MacKinnon, J., concurring in part and dissenting in part) (“[E]xamination ... leaves no room to doubt that these warrantless surveillances fell within the putative ‘foreign agent exception’ to the warrant requirement of the Fourth Amendment.”).
Even after considerable document discovery, plaintiffs can point to no objective facts that suggest a conclusion contrary to Sinclair. Instead, based on indicia of Mitchell’s “law enforcement philosophy,” Brief for Appellants at 29, and a catalogue of allegedly illegal FBI activity (entirely unrelated to the challenged wiretap), id. at 22-29, they urge us to find that Mitchell’s assertion of a national security purpose was pretextual. As we have said, such a subjective inquiry is not permitted. See Halperin II, 807 F.2d at 188; Smith II, 807 F.2d at 200-01. Since (in light of the complaint’s inadequacy) even the discovery that plaintiffs have already conducted should not have been allowed, see Smith II, 807 F.2d at 200-01; Hobson v. Wilson, 737 F.2d 1, 29-31 (D.C.Cir.1984), cert. denied, 470 U.S. 1084,105 S.Ct. 1843, 85 L.Ed. 2d 142 (1985), plaintiffs’ requests for further discovery before the summary judgment determination were properly denied.
Ill
Plaintiffs challenge the District Court’s grant of summary judgment in favor of Rowley, Rogers, Laird, and Helms, and its dismissal of Russo’s suit, on the ground that a genuine issue exists as to the truth of the government’s denial that plaintiffs were subject to other, non-privileged wiretaps that the government has concealed. Brief for Appellants at 9. The mere denial of a denial, however, does not suffice to create a genuine issue of fact for purposes of Fed.R.Civ.P. 56(c). Plaintiffs alleged no concrete facts that would sustain a finding that such nonprivileged interceptions existed. Plaintiffs argue, in essence, that the government’s “prolonged history of fraudulent misrepresentation” regarding its wiretapping activities and other prosecutorial misconduct could convince a jury that federal officials are in the “habit” of concealing such wiretaps from courts and are now behaving pursuant to that “habit.” Brief for Appellants at 31 (citing Fed.R.Evid. 406 (“Habit; Routine Practice”)); see also id. at 31-43. Further, each plaintiff enumerates a list of alleged governmental illegalities demonstrating official interest in him during and after the Pentagon Papers investigation and trial. Id. at 30, 44-45. For example, Russo alleges that he was subject to unspecified assassination attempts and “death threats from government connected sources.” Id. at 45. Young alleges that he could not locate some of his office files for several months, and that his car was once unjustifiedly towed, and when he claimed it, local police took two hours to locate a briefcase he had left in it — from which he infers that the FBI both burglarized his office and copied documents in his briefcase — from which he urges us to infer that there must have been a wiretap as well. Id. at 30.
We decline to license any plaintiff to embark on a fishing expedition in government waters on the basis of such speculation. Cf. United States v. Kember, 648 F.2d 1354, 1368-70 (D.C.Cir.1980) (criminal defendant must bear heavy burden to overcome government’s positive denial of electronic surveillance); United States v. Williams, 580 F.2d 578, 584-87 (D.C.Cir.) (same), cert. denied, 439 U.S. 832, 99 S.Ct. 112, 58 L.Ed.2d 127 (1978). The extensive documentary discovery in which plaintiffs have already engaged (supplemented by Russo’s Freedom of Information Act request) has turned up no concrete facts that would indicate that nonprivileged wiretaps existed. As we noted earlier, even that discovery was impermissibly granted; in addition to the fact that further discovery would evidently be fruitless, it too would be impermissible.
******
The judgments of the District Court are
Affirmed.
. A seven-line paragraph in plaintiffs’ brief, without citation to any authority, challenges the District Court’s order of June 10, 1982, Brief for Appellants at 45 — which the brief erroneously refers to elsewhere as “[t]he order of May 28, 1982,” id. at 3 — dismissing defendants Walters, Ingersoll, Aeree, Kleindienst, and Gray. However, plaintiffs failed to file a notice of appeal of that order, see Notice of Appeal (listing only orders of Dec. 23, 1982 and July 27, 1983), made no reference to the issue in their statement of issues presented, and declined to respond to defendants' assertion that such omissions constituted a waiver of appeal as to that order. Accordingly, that ground of error has been waived. See Fed.R.App.P. 3(a), 28(a); Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). Compare Black Panther Party v. Smith, 661 F.2d 1243, 1276-77 (D.C.Cir.1981), vacated on other grounds, 458 U.S. 1118, 102 S.Ct. 3505, 73 L.Ed.2d 1381 (1982).
. Plaintiffs have not addressed on appeal, and are assumed to have abandoned, the claim that defendants violated any clearly established fourth amendment reasonableness requirements. See Smith II, 807 F.2d at 203 n. 3. Compare Halperin II, 807 F.2d at 191-93; id, (Mikva, J., with Robinson, J., concurring).
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_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.
Procio Rivero PILAPIL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 270-69.
United States Court of Appeals, Tenth Circuit.
March 20, 1970.
Rehearing Denied April 27, 1970.
John A. Kintzele, Denver, Colo., for petitioner.
Leonard W. D. Campbell, Denver, Colo. (James L. Treece, U. S. Atty., and Gordon L. Allott, Jr., Asst. U. S. Atty., Denver, Colo., with him on the brief) for respondent.
Before HICKEY and HOLLOWAY, Circuit Judges, and EUBANKS District Judge.
Sitting by designation.
HICKEY, Circuit Judge.
This case arises out of a petition to review an order of The Board of Immigration Appeals as provided for by Section 106(a) of the Naturalization and Immigration Act of 1952 (hereinafter the Act), 8 U.S.C. § 1105a as amended (1961). The Board order dismissed an appeal from the decision of a Special Inquiry Officer in a deportation proceeding which found that “after admission as a nonimmigrant [student] under Section 101(a) (15) of said act [he] failed to comply with the conditions of the nonimmigrant’s status under which he was admitted,” that he was therefore de-portable pursuant to Section 241(a) (9) of the Act, and that he was not eligible for requested permission to remain permanently as an immigrant with a worldwide quota preference. The officer also denied Pilapil’s application for voluntary departure.
Pilapil conceded his deportability under Section 241 of the Act and does not here contest this aspect of the officer’s finding. Likewise, he does not argue that the Special Inquiry Officer and the Board of Immigration Appeals abused their discretion in denying him the right of voluntary departure from the country. Instead, Pilapil has consolidated the twelve points relied on in his petition for review to the following four issues:
1. Whether petitioner had a right to counsel in the deportation hearing and whether that right was violated ?
2. What evidence of, or notice of, the conditions allegedly- not complied with must be taken at the administrative hearing or made part of the record?
3. Whether the statutory subsection [8 U.S.C. § 1251(9)] is too vague and does it involve an unconstitutional delegation?
4. Does it violate due process to prohibit a lawfully admitted “nonim-migrant” student from working without first obtaining permission to do so from the Immigration and Naturalization Service?
None of these issues were specifically raised in the hearing which was conducted pursuant to the provisions contained in 8 U.S.C. § 1252(b) and consequently are not specifically reflected in the record upon which the order is based. 8 U.S.C. § 1105a(a) (4) limits us to consideration of the administrative record in ruling on the petition. Thus, we must decide initially whether or not under the limited review statute issues not presented in the administrative record to the executive officer to whom authority has been delegated is outside the record and not reviewable by us.
At the outset it is clear that Pilapil could get judicial review of these issues by writ of habeas corpus when taken into custody pursuant to the deportation order. 8 U.S.C. § 1105a(a) (9). Foti v. Immigration and Naturalization Service, 375 U.S. 217, 231, 84 S. Ct. 306, 11 L.Ed.2d 281 (1963). It is not clear, however, that the availability of habeas corpus takes consideration of these issues beyond our reach.
The jurisdictional reach of § 1105a has been considered on three occasions by the Supreme Court. Acknowledging the statutory language “[t]he procedure * * * shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation * * * made against aliens within the United States * * * except that — ,” the court expanded the reach of the exclusive jurisdiction in the Court of Appeals to include a request made in the course of a section 242(b) deportation proceeding, 8 U.S.C. § 1252(b), for a suspension of deportation under section 244(a) (5), 8 U.S.C. § 1254(a) (5), (1&64). Foti, supra. Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964) decided that the Court of Appeals also has exclusive jurisdiction to review a denial of a motion to reopen a section 242(b) proceeding. In Cheng Fan Kwok v. Immigration & Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968) it was held that the exclusive jurisdiction of the Court of Appeals was limited to orders arising from the proceedings for deportation provided in section 242(b). We are limited by these to review of questions arising from the proceedings as reflected in the administrative record.
Thus, if Pilapil were protesting the factual determination that he is deportable or the refusal to grant him the privilege of voluntary departure, our jurisdiction would be clear. In that case, the petitioner, to have the decision overturned, would have to show that the decision is without rational basis and is arbitrary, capricious or an abuse of discretion. Foti, supra.
The tenor of the issues raised by Pilapil, however, is not that the deportation order is not called for by the facts given, but rather that to deport him under the circumstances here would be unconstitutional. Recognizing that these issues could be raised in a habeas corpus proceeding, we do not feel that this precludes the court from considering them.
As was stated by the Ninth Circuit in reviewing an exercise of discretion by an immigration official, “the function of this court is limited to insuring that this discretion is not abused, and that petitioner has been afforded a full and fair hearing that comports with due process.” Antolos v. Immigration and Naturalization Service, 402 F.2d 463, 464 (9th Cir. 1968). See also, Jarecha v. Immigration and Naturalization Service, 417 F.2d 220, 225 (5th Cir. 1969), Yiannopoulos v. Robinson, 247 F.2d 655, 656-657 (7th Cir. 1957).
The facts needed to treat the issues raised by Pilapil are set out in the administrative record. Nothing in the limited jurisdictional statute is explicit in directing that only issues raised at the hearing may be raised on a petition for review. While the issues raised do not question Pilapil’s deportability under the statute, if they are well taken, the order itself would be voided. See Ferrante v. Immigration and Naturalization Service, 399 F.2d 98, 103 (6th Cir. 1968) and cases cited. Because constitutional issues are concerned and because of the outcome we reach, we hold that we are not precluded from considering the issues raised by Pilapil.
The administrative record reflects that Pilapil appeared without counsel for a deportation hearing on January 28, 1969. He was advised he had a right to counsel at his own expense and exercised the right. The hearing was postponed for the purpose of permitting him to obtain a lawyer. Approximately 30 days thereafter, on February 25, 1969, petitioner appeared with Mr. Daniel H. Schoedinger, who identified himself as follows: “I am a law student at the University of Denver. I am here on behalf of the Legal Aid Society for Mr. Pilapil.”
Section 242(b) (2) of the Act provides “the alien shall have the privilege of being represented (at no expense to the government) by such counsel, authorized to practice in such proceedings, as he shall choose; * * It is contended by petitioner that Schoedinger did not satisfy the requirements of a “counsel” because he was not authorized to act as an attorney in a deportation hearing.
2 Colo.Rev.Stat. § 12-1-19 (1963): “Students of any law school which has been continuously in existence for at least ten years prior to the passage of this section and which maintains a legal aid dispensary where poor persons receive legal advice and services, shall when representing said dispensary and its clients and then only be authorized to appear in court as if licensed to practice.”
Pilapil argues that the foregoing provision does not qualify the law student to act as counsel in Federal Immigration proceedings. The contention may be true because deportation proceedings are administrative rather than judicial. Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082 (1939).
8 C.F.R. § 292.1(c) (1958) provides: “Accredited representatives. A person may be represented by an accredited representative of an organization described in section 1.1 (j) of this chapter.”
8 C.F.R. 1.1 (j) (1965) provides: “The term ‘representative’ means a person representing a religious, charitable, social-service, or similar organization established in the United States and recognized as such by the Board, or a person described in § 292.1(b), (d), or (h) of this chapter.” At the hearing now questioned the petitioner’s representative identified himself in the record as being there “on behalf of the Legal Aid Society.”
Legal Aid Society is “[a]n organization providing free help in legal guidance and service to persons who cannot afford a lawyer.” Random House Dictionary, p. 818 (Unabridged ed. 1966). Thus, Pilapil’s representative qualifies.
The thrust of present counsel’s complaint against “the law student” is that he permitted an admission of deportability. However, the Supreme Court in Foti, supra, 375 U.S. at 227, 84 S.Ct. at 313 footnote 13, recognized “[djeportability is conceded in about 80% of the cases.” It is therefore evident that the strategy of the petitioner's counsel in representing his client places him with the great majority of experienced representatives. The argument is without merit in view of the record made by the petitioner’s legal aid counsel, and in view of the fact that Pilapil himself when testifying conceded the elements of deportability.
The specifics of the order to show cause answer the second issue above set forth. In the order, Pilapil is identified as a native and citizen of the Philippines, not a citizen or national of the United States. Violation of section 241(a) (9) of the Immigration and Naturalization Act is charged, “in that after admission as a nonimmigrant under section 101(a) (15) of said act you failed to comply with the conditions of the nonimmigrant status under which you were admitted. You have been employed without permission as a busboy for the Cherry Creek Inn, Denver, Colorado, as of October 29, 1968, at $1.25 an hour.” After the foregoing had been read to petitioner in the presence of his representative, he replied, “I think I understand. Q. You think so? A. Yes.” This, together with the documentary evidence contained in the record, is convincing that evidence and actual notice of the conditions are a part of the record under review. Therefore the second contention is without merit.
It is next claimed that the section under which the charge in the order to show cause is alleged is vague and involves an unconstitutional delegation.
This claim is premised on the presumption that the statute as it relates to deportation is penal and therefore the criminal standards should be applied. A deportation proceeding is not a criminal prosecution. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S. Ct. 512, 96 L.Ed. 586 (1952). The assertion was reiterated and confirmed in Woodly v. Immigration Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966).
Fed.R.Civ.P. 12(e) provides a remedy for vague or uncertain pleading. If the order to show cause presented a question of the condition that had been violated, a more definite or precise statement could have been obtained. We can conceive of no more definite and precise allegation in the order than that set forth above that petitioner had been employed without obtaining permission, a condition to continued status as a nonimmi-grant student.
The delegation of authority is also questioned. 8 U.S.C. § 1184(a) provides in part: “The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations proscribe, including * * The regulations, particularly 8 C.F.R. § 214.2(f) (3) which deals with special requirements for the admission of students, spell out the conditions that a student alien must maintain to continue in the nonimmigrant alien status granted at the time of admission. The record is replete with requests to allow employment made by petitioner and denied by the Director. These are convincing that petitioner was aware of these conditions and the loss of status effected by the breach of them. “The rule as to a definite standard of action is not so strict in cases of the delegation of legislative power to executive boards and officers.” Mahler v. Eby, 264 U.S. 32, 41, 44 S.Ct. 283, 287, 68 L.Ed. 549 (1924).
“The power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely through executive officers, ‘with such opportunity for judicial review of their action as congress may see fit to authorize or permit.’ ” Carlson v. Landon, 342 U.S. 524, 537, 72 S.Ct. 525, 532, 96 L.Ed. 547. Cf. Jarecha v. Immigration and Naturalization Service, 417 F.2d 220 (5th Cir. 1969).
The delegation is not constitutionally proscribed.
The final contention urged is that alien petitioner had a constitutional right to work without authorization. The authorities cited by petitioner concern immigrants lawfully residing in the United States. These cases are the key to the contention. Petitioner admits he is a nonimmigrant with alien status for the sole purpose of being a student in the United States admitted subject to specific conditions.
Before this limited status was granted to respondent, he had no rights under the Constitution, laws or government of the United States. As a citizen and national of another country his rights were established by the alien law peculiar to his native domicile. The limited status given him as an alien student had some specific conditions attached. One was that he had sufficient money to insure that he would not become a public charge nor be required to enter into the labor market of this country. He agreed to these conditions to obtain the privilege accorded the limited status. He was not coerced to forego rights he otherwise would have had. He acquired only the limited status established by the conditions. 8 U.S.C. § 1251(a) provides :
“Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who * * * (9) was admitted as a nonim-migrant and failed to maintain the nonimmigrant status in which he was admitted or to which it was changed pursuant to section 1258 of this title, or to comply with the conditions of any such status
In addition, 8 C.F.R. § 214.1(a) provides, in relation to maintenance of non-immigrant status, that:
“Every nonimmigrant alien applicant for admission or extension of stay in the United States shall * * * agree that he will abide by all the terms and conditions of his admission or extension, and that he will depart at the expiration of the period of his admission or extension or on abandonment of his authorized nonimmigrant status. * * * ”
Therefore no rights under the Constitution of the United States relative to equal opportunity of employment are involved. Wei v. Robinson, 246 F.2d 739 (7th Cir.), cert. denied, 355 U.S. 879, 78 S.Ct. 144, 2 L.Ed.2d 109 (1957).
Affirmed.
. 8 U.S.C. § 1105a provides: “The procedure described by, and all the provisions of sections 1031-1042 of Title 5, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title or comparable provisions of any prior Act, except that * *
. 8 U.S.C. § 1105a(a) (4) provides: “except as provided in clause (B) of paragraph (5) of this subsection, the petition shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General’s findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive
. 8 U.S.C. § 1105a(a) (9) provides: “any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings.”
. 8 U.S.C. § 1251(9) provides: “* * * was admitted as a nonimmigrant and failed to maintain the nonimmigrant status in which he was admitted or to which it was changed pursuant to section 1258 of this title, or to comply with the conditions of any such status
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_usc2sect
|
173
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Appellee, v. Nelson CRESPO, Appellant.
No. 456, Docket 33451.
United States Court of Appeals, Second Circuit.
Argued Jan. 16, 1970.
Decided Feb. 25, 1970.
Certiorari Denied May 18, 1970.
See 90 S.Ct. 1716.
Jon A. Sale, James D. Zirin, Asst. U. S. Attys., Robert M. Morgenthau, U. S. Atty., for appellee.
Marilyn Elaine Meadors, Milton Adler, New York City, for appellant.
Before MEDINA, WATERMAN and SMITH, Circuit Judges.
WATERMAN, Circuit Judge:
This is an appeal from a judgment of conviction, after a three-day jury trial in the United States District Court for the Southern District of New York, for the knowing receipt, concealment, transportation and sale of illegally imported heroin, in violation of 21 U.S.C. §§ 173, 174, and conspiracy to commit such acts. The defendant, a second narcotics offender, was sentenced to concurrent ten year terms of imprisonment.
The facts follow the usual pattern in narcotics cases — Federal Bureau of Narcotics agent meets informant; informant arranges meeting with narcotics salesmen; agent negotiates buys; narcotics salesmen are arrested. There is no issue as to the sufficiency of the evidence. Appellant on appeal raises two points: (1) the Section 174 inferences, illegal importation of heroin and defendant’s knowledge of that fact, are constitutionally impermissible, and (2) the court’s instruction to the jury relating to the elements of importation and knowledge was worded in such a way as to render the statutory inferences, if constitutionally valid, conclusive presumptions. We confine our discussion to appellant’s latter point inasmuch as the inferences authorized by § 174 with respect to heroin were recently upheld. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).
As part of the Government’s case in chief, testimony was offered to establish the fact that a tinfoil package containing approximately 14.80 grams of heroin hydrochloride was found in appellant’s pocket at the time of his arrest. Taking the stand in his own defense appellant denied he was in possession of the alleged narcotics at the time of his arrest. Thus, since the jury accepted the Government’s version, as evidenced by the verdict, and no evidence was offered to explain defendant’s possession of the drug, proof of at least two elements of the crime, the illegally imported character of the heroin and knowledge of such, must rest exclusively upon the statutory inferences.
The statute does not require the jury to convict once possession of the narcotic is established, even in a case where .the evidence negates any doubt that the defendant lawfully or innocently possessed the drug. See, e. g., United States v. Peeples, 377 F.2d 205, 210-211 (2 Cir. 1967).
Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury. 21 U.S.C. § 174 (emphasis supplied).
If the defendant or the evidence from other sources “explains the possession to the satisfaction of the jury,” it follows that the statutory inferences do not operate. On the other hand, if the defendant or the evidence viewed as a whole does not so “explain,” the statute merely permits the jury to view the fact of possession of the narcotic (heroin) as evidence from which to infer the ultimate facts of illegal importation and knowledge. Section 174 does not operate as a displacement of the jury’s duty to be convinced beyond a reasonable doubt that the ultimate facts are true before it can convict.
As pointed out in Turner v. United States, supra at 647, the jury may conclude that “* * * heroin is not produced in the United States and that any heroin possessed here must have originated abroad * * *' based on its own store of knowledge, * * ■>:■ » an(j infer therefrom that the defendant “ * * * was equally well informed.” Or, being uninformed as to the sources of heroin, the jury may reach the same conclusions “ * * * reasoning that the statute represented an official determination [by Congress] that heroin is not a domestic product.” The statute, therefore, provides the jury with a fact, a fact judicially noticed by the Court in Turner, that heroin is not a domestic product. “To possess heroin is to possess imported heroin.” Id. at 652 (emphasis in original). The jury, as the sole judge of the facts, may, if it chooses, reject this legislative fact-finding, as it may likewise reject any other evidence tending to establish any other fact sought to be proved in a criminal case. Coupled with the fact that the defendant had knowing possession of the heroin, the jury may infer that the heroin in question was illegally imported and that the defendant knew as much, for “ * * * those who traffic in heroin will inevitably become aware that the produce they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled.” Turner v. United States, supra at 653.
In a case of this sort, it is important for .the trial judge carefully to instruct the jury as to the principles outlined above if the statutory inferences are relied upon to prove the elements to which they relate. Otherwise, a jury may be too easily lulled into a belief that the statutory inferences are conclusively binding upon them unless the defendant successfuly explains his possession by bringing out rebutting evidence.
We now turn to the charge challenged on this appeal. The trial court instructed the jury with reference to the substantive count:
As to the third and fourth essential elements of the government’s proof, ladies and gentlemen, it will doubtless occur to you that the prosecution has not offered any direct evidence to establish illegal importation into this country of the substances referred to in the indictment or any direct evidence of either one of the two defendants’ knowledge that these substances were imported or brought into the United States contrary to law. However, another portion of Section 174 of the Code which I read to you a few moments ago comes into play here or may come into play depending on how you assess the facts.
This portion of Section 174 provides in relevant part that if during the course of the trial a defendant is shown to have or to have had possession of the narcotic drug such possession shall be deemed sufficient evidence to authorize conviction unless the evidence explains the possession of that defendant to the satisfaction of the jury. Thus under the law proof of possession of narcotics gives rise to an inference that the narcotics were imported contrary to law and the further inference that the person who had possession of such narcotics knew of such illegal importation into this country.
In short, this means that you would be authorized to convict a defendant if there has not been any legitimate explanation of his possession of the narcotics or if there was an explanation which you disbelieve. In other words, if the government demonstrates beyond a reasonable doubt that a given defendant had possession of what is in fact a narcotic drug and there is no satisfactory explanation in the case of this possession, you would be entitled to infer that the narcotic in question was illegally imported and that the defendant shown to have possession thereof knew it was illegally imported.
On the other hand, if you find from the evidence that this inference is not justified, or, to put it in other words, that there is a satisfactory explanation, an innocent explanation, from the evidence, then you would be entitled not to draw this inference which the law provides.
The defense did not except to the above instruction and, therefore, is precluded from prevailing on appeal unless plain error can be shown. Fed.R.Crim.P. 52(b). We conclude that the instruction now urged for the first time on appeal to have been a deficient instruction was minimally sufficient to apprise the jury that it was not bound by the statutory inferences even though there had been no satisfactory explanation of the defendant’s possession of the drug. Similar instructions, moreover, have been upheld, in the face of timely exceptions, in the past. See, e. g., United States v. Secondino, 347 F.2d 725 (2 Cir.), cert. denied sub nom. Massari v. United States, 382 U.S. 931, 86 S.Ct. 322, 15 L.Ed.2d 342 (1965). We wish to say, however, that the above charge could have been improved upon despite the fact that the court told the jury it would be “authorized” to convict and would be “entitled” to infer the elements of illegal importation and defendant’s knowledge of illegal importation in the absence of a satisfactory explanation of possession. To avoid any misunderstanding on the jury’s part that it is somehow bound by the statutorily prescribed inferences unless they hear countervailing evidence, the wiser practice is to spell out expressly that the jury is not only authorized to infer the elements in question but is authorized also not to infer such elements. It would be well, we think to explain the up-to-date basis supporting the legitimate inferability of one of the statutory elements, that a recent official investigation resulted in an unchallenged determination that all heroin found in the United States has been illegally imported into the country, because heroin is, first, not produced domestically, and, second, it is illegal to import heroin or products from which heroin is derived. The other inferential element, that the defendant had knowledge of illegal importation, should be explained without reference to the statute by instructing the jury that it is reasonable to infer that one who unexplainedly possesses and deals in heroin would probably know of its source or at least would know that it was smuggled into the country from somewhere outside the country. Finally, although thus aided by official findings, the jury should also be instructed that those findings and the rational inferences arising therefrom and the additional rational inference of the possessor’s knowledge arising from the fact of his possession are not binding upon them and are not a substitute for their considered deliberations and duty to acquit the defendant if they are not convinced that every element of the crime charged was proved beyond a reasonable doubt.
We hope that trial judges will give serious thought to the drafting of charges that agree with these principles, principles we have previously explicated and which we are reaffirming in this opinion, and which we believe are now demanded by the opinion of the Supreme Court in Turner v. United States, supra.
Affirmed.
. Appellant Crespo was tried jointly with a codefendant, Julio Rivera. Rivera was also convicted but has not appealed. Another codefendant, a John Doe, was a fugitive at the time of trial,
. The jury should not be instructed that the defendant himself must “explain the possession.” The statute must be construed as if it read “unless * * * [the evidence from any source, viewed as a whole] explains the possession * * lest too great a burden be placed on the defendant to testify, and if he chooses not to testify to avoid an impermissible inference from his failure to take the stand. United States v. Armone, 363 F.2d 385 (2 Cir.), cert. denied, Viscardi v. United States, 385 U.S. 957, 87 S.Ct. 391, 17 L.Ed.2d 303 (1966).
. “Possession to the satisfaction of the jury” means that the jury is satisfied beyond a reasonable doubt that (1) the defendant committed one of the specified physical acts charged, e. g., he did receive, conceal, buy, sell, or transport the heroin and "possessed” the heroin while so acting; (2) the defendant knew that the substance possessed was heroin; (3) the defendant possessed the heroin unlawfully, i. e., the heroin was imported or clandestinely produced domestically; and (4) the defendant was aware of the heroin's illegal source. See, e. g., United States v. Llanes, 374 F.2d 712, 715 (2 Cir.), cert. denied, 388 U.S. 917, 87 S.Ct. 2132, 18 L.Ed.2d 1358 (1967).
. It is illegal to import heroin or to manufacture it domestically for any purpose, medical or otherwise. 21 U.S.C. § 173. See Turner v. United States, supra at 642 n. 12 and n. 13.
. See Turner v. United States, supra 90 S.Ct. 642, n. 10 and n. 11, for the official investigations undertaken to determine the sources of heroin.
. The inference of knowledge of illegal transportation arises once the evidence tends to establish that the defendant had possession of the heroin. Congress by allowing the jury to infer knowledge from the proof of possession did no more than “accord to the evidence, if unexplained, its natural probative force.” United States v. Gainey, 380 U.S. 63, 71, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), quoting from McNamara v. Henkel, 226 U.S. 520, 525, 33 S.Ct. 146, 57 L.Ed. 330 (1913). Where it is naturally probative to draw an inference from a proven fact so that it is permissible to give an instruction relative thereto, “the better practice” is to omit “any explicit reference to the statute itself.” Id. 380 U.S. at 71, 85 S.Ct. at 759 n. 7; Verdugo v. United States, 402 F.2d 599, 605 (9 Cir. 1968); United States v. Armone, supra 363 E.2d at 392. However, the inference that arises from the possession of heroin that it was illegally imported heroin arises in a different way. In many heroin cases, no evidence is introduced at trial tending to establish that the particular heroin in issue was illegally imported. In the absence of the statute, it would be impermissible, as no evidence relative to illegal importation is before the jury, to instruct that it may be inferred that the heroin was illegally imported. Congress, however, has instructed that evidence of illegal importation need not be introduced at trial because, based on legislative investigation, it has conclusively found that if one possesses heroin in this country the heroin he possesses must necessarily be imported heroin. A juror may or may not know where heroin comes from; and, for those jurors who do not know of the origins of heroin, it should be permissible for them to accept or reject the legislative finding that heroin is not a domestic product. Congress, then, has accorded to one’s possession this second inference which carries with it by legislative fact-finding “its natural probative force,” in lieu of requiring that more than the possession be proved. Consequently, it seems obvious that in submitting the issue of the innocence or guilt of a particular defendant it is the “better practice” when dealing with inferences of this second type that are based on legislative findings to explain that the statute authorizes jurors to adopt or not to adopt as a proven inferential fact what Congress has deemed to be commonly known and understood.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21? Answer with a number.
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.
Elias MILLER, Paul Miller, Anna Miller and Helen Miller, and Elias Miller and Paul Miller, as executors of the estate of George Miller, deceased, Appellants, v. Irving SULMEYER, trustee in bankruptcy of the estate of Delcon Corporation, bankrupt, Appellee.
No. 15781.
United States Court of Appeals Ninth Circuit.
Jan. 16, 1959.
Rehearing Denied April 17, 1959.
Sylvan Y. Allen, Max Mayer, Willis & McCracken, Ernest R. Utley, Los An-geles, Cal., for appellants.
George M. Treister, Quittner, Stut-man & Treister, Los Angeles, Cal., for appellee.
Before STEPHENS, CHAMBERS and BARNES, Circuit Judges.
. While California does not require instantaneous recording, it does require that it be recorded as soon as practicable. And there is no California case which has upheld anything like a 79 day delay. See Wolpert v. Gripton, 213 Cal. 474, 2 P. 2d 767, and Williams v. Belling, 76 Cal. App. 610, 245 P. 455.
CHAMBERS, Circuit Judge.
The Millers sold a business in June, 1954, to the now bankrupt Deleon Corporation. They took back from Deleon a purchase money mortgage on chattels transferred to Deleon. There was a 79 day delay in recording of the chattel mortgage. This failure of the Millers to record was due to the negligence of a “trusted employee” who was apparently too busy with his defalcations of his employers’ cash to attend to routine business.
Eventually in December, 1954, under the terms of the mortgage the Millers repossessed the chattels and resold the property in March, 1955, for $82,500. All agree this was a fair price.
Deleon was insolvent at the time of the repossession, but solvent at the time of execution of the mortgage. The Millers filed a claim with trustee Sul-meyer for $141,742.50. This was mainly the balance due on the original note and mortgage which were in the amount of $189,000. Objections were made to the whole claim by the trustee. He asserted that by superimposing the bankruptcy act on the California state law the trustee had a right first to recover the proceeds of the sale of the chattels after which the claim could be allowed.
At the time of hearing before the referee there were on file claims for $8,906.95 (including some $7,863.64 due to the ubiquitous director of internal revenue) which originated prior to the filing date of August 19, 1954, for the chattel mortgage, but probably after the date of the mortgage. All other creditors apparently postdated the recording date.
The referee ruled that the Millers must repay the sum of $8,906.95, at which time they could have their claim for $141,742.-50 allowed along with a supplemental claim in the amount of $8,906.95, both items to be general and unsecured claims. On review, the district court directed the referee to enter judgment against the Millers for $82,500 (less certain small credits). Upon payment thereof the Millers were to have their claim of $141,-742.50 allowed as well as a supplemental claim for $82,500, all as unsecured claims. From this heavy blow, the Millers have appealed.
And, so the question here is whether the trustee is entitled to this windfall of $82,500. If so, the result is that the Millers originally sold their property without getting any security. This court is of the opinion, try as it may to reach a different result, that the case of Moore v. Bay, 284 U.S. 4, 52 S.Ct. 3, 76 L.Ed. 133 (reversing In re Sassard & Kimball, 9 Cir., 45 F.2d 449) controls and that the district court must be affirmed. Cf. Mercantile Trust Co. v. Kahn, 8 Cir., 203 F.2d 449.
All agree that but for the interposition of the bankruptcy adjudication the Miller repossession and sale under California state law would be impeccable as against creditors of Deleon becoming such after August 19, 1954. It would seem equally clear that creditors whose debts originated in the delayed period of 79 days under California law might have attacked the mortgage — here to the extent of $8,906.-95.
The following extracts from the bankruptcy act should be quoted:
11 U.S.C.A. § 110, sub. c (Bankruptcy Act, § 70, sub. c):
“The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.” (Emphasis supplied.)
11 U.S.C.A. § 110, sub. e(l), (Bankruptcy Act, § 70, sub. e(l)):
“A transfer made or suffered or obligation incurred by a debtor adjudged a bankrupt under this Act which, under any Federal or State law applicable thereto, is fraudulent as against or voidable for any other reason by any creditor of the debt- or, having a claim provable under this Act, shall be null and void as against the trustee of such debtor.” (Emphasis supplied.)
11 U.S.C.A. § 96 (Bankruptcy Act, § 60):
“(a) (1) A preference is a transfer, as defined in this Act, of any of the property of a debtor to or for the benefit of a creditor for or on account of an antecedent debt, made or suffered by such debtor while insolvent and within four months before the filing by or against him of the petition initiating a proceeding under this Act, the effect of which transfer will be to enable such creditor to obtain a greater percentage of his debt than some other creditor of the same class.
******
“(b) Any such preference may be avoided by the trustee if the creditor receiving it or to be benefited thereby or his agent acting with reference thereto has, at the time when the transfer is made, reasonable cause to believe that the debtor is insolvent.”
It is true, as the Millers say, the infirmity in the California chattel mortgage in Moore v. Bay, supra, was slightly different. There it was failure to give the required statutory notice of intention to give a chattel mortgage. However, this court finds itself unable to distinguish that case and the Millers’ case in principle.
While the members of this court might belong to the legislative school that would vote to require trustees to take over rights as the state left them, still it is well settled that bankruptcy statutes can do more. And it would appear the sections above quoted do pick up the California state law, use it as a springboard and go beyond it. Section 70, sub. e(l) says if any creditor could knock out the “transfer” as to him, the transfer is void as to the trustee. Section 70, sub. c only requires a hypothetical creditor not a real one. And Section 60 does nothing to weaken the other two sections. It buttresses them.
The Millers attack the constitutionality of the sections as here interpreted to take away from them their $82,500. Those things are constitutional which the Supreme Court says are constitutional. The point is answered by that court in Wright v. Union Central Ins. Co., 304 U.S. 502, 58 S.Ct. 1025, 82 L.Ed. 1490.
The Millers belatedly made three other points. The first is that the delay was excusable. The fact that the employee was simultaneously embezzling other assets is no excuse. None other is suggested. Second, it is argued that purchase money mortgages are exempt. The language of § 2957 of the West’s Ann. California Civil Code is all inclusive. The general rule elsewhere is against the Millers and no persuasive California authority is cited for the idea. Thirdly, it is suggested that the repossession before bankruptcy cured the infirmities. This might be true in some states, but the California rule appears to be against the Millers on the point. Noyes v. Bank of Italy, 206 Cal. 266, 274 P. 68.
While it may be said that the state laws imposing penalties for failure to record instruments are drastic enough without superimposing additional federal sanctions, still the sanctions were written by the Congress and this court must give effect to them, harsh as they seem to be here.
While the brief for appellants is an able one, this court just cannot get away from the proposition that if the mortgage was subject to attack under California law by any creditor or even by the creditor who wasn’t, but who might have been, then the bankruptcy act and Moore v. Bay, supra, permit the trustee to demolish the creditor’s security although partially valid under state law (or even wholly valid in some circumstances because of the absence in fact of a certain type of creditor).
The order subject to this appeal is affirmed.
. West’s Ann.California Civil Code § 2957 reads as follows:
“A mortgage of personal property * * * is void as against creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith and for value, unless * *
“4. The mortgage, if of personal property other than crops growing or to be grown or animate personal property, is recorded in the office of the recorder of the county where the property mortgaged is located at the time the mortgage is executed * *
. The petition of three creditors for an adjudication of involuntary bankruptcy of Deleon was filed on February 23, 1955. The adjudication was made by the referee on March 16, 1955.
. The court does not consider the situation in In re Mercury Engineering, D.C.S.D.Cal., 68 E.Supp. 376, to be parallel. There the district court determined that according to California law it was not necessary in the case of a purchase money mortgage to comply at all with § 3440 of the West’s Ann.California Civil Code requiring the filing of advance notice of intention to give a chattel mortgage. Therefore, the bankruptcy sections do not come into operation. Surely California would not hold that a purchase money chattel mortgage need never be recorded. The reason is that a large amount of apparently unencumbered assets permits a false appearance of economic health if they are in fact encumbered. In such circumstances general creditors would think at least that there was a substantial fund for all general creditors.
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_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 v. MOLYNEAUX et al.
No. 231.
Circuit Court of Appeals, Second Circuit.
Feb. 8, 1932.
Louis Halle, of New York City (Milton R. Kroopf, of New York City, of counsel), for appellant Molyneaux.
Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg, William T. Cowin, and Henry G. Singer, Asst. U. S. Attys., all of Brooklyn, N. Y., of counsel), for the United States.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The appellant, Cecil Molyneaux, and an alleged confederate, Malcolm McMasters, were convicted under count 2 of the indictment which charged the defendants with unlawfully operating certain apparatus for the transmission of energy, communications and signals by radio, for which a radio license was required by the Radio Aet of 1927 (47 USCA § 81 et seq.), without first having obtained an operator’s license to operate the apparatus from the Secretary of Commerce required by section 20 of the Radio Act of 1927 (47 USCA § 100).
The indictment is attacked as insufficient because it did not in terms charge that the appellant operated the apparatus for the purpose of transmitting signals or intelligence beyond the borders of the state of New York, and was silent as to the intended or actual destination of the messages.
Section 1 of the Radio Act (47 U. S. C. § 81 [47 USCA § 81]) provides that no person shall use any apparatus for communication by radio from any place within any state when the effects of such use extend beyond the borders of such state. In other words, an apparatus, the effects of which extend beyond the state in which it is stationed, comes within the law requiring a station license. Section 20 of the Radio Act (47 USCA § 100) provides that the actual operation of all transmitting apparatus in any radio station for which a station license is required shall be carried on only by a person holding an operator’s license.
The second count of the indictment essentially alleges that the defendants did operate an apparatus for the transmission of communications by radio for which a radio license was required by the Radio Act of 1927, without having first obtained an operator’s license. In other words, it in effect alleges that, without an operator’s license, they operated a radio apparatus for which a station license was required by section 1 of the act. [2, 3] In charging a statutory offense it is ordinarily sufficient to charge it in the words of the statute. Baas et al. v. United States (C. C. A.) 25 F.(2d) 294; United States v. Brand (D. C.) 229 F. 847; Newton Tea & Spice Co. v. United States (C. C. A.) 288 F. 475; Lund v. United States (C. C. A.) 19 F.(2d) 46; Blain v. United States (C. C. A.) 22 F.(2d) 393; Olmstead v. United States (C. C. A.) 29 F.(2d) 239. Accordingly the allegation that the defendants operated a radio apparatus for which a radio license was required by the Radio Aet of 1927, without first having obtained an operartor’s license seems to ns to have incorporated by reference the provisions of section 1 requiring a station license in ease of an apparatus, the effects of which extend beyond the borders of the state. The indictment was therefore sufficient in form and fairly notified the defendants of the charge which they had to meet.
There was plainly enough evidence to go to the jury to justify a finding that the apparatus operated was of the sort which required a station license and that the defendants did not have operators’ licenses. But there was no adequate proof that Molyneaux, who is the only defendant who has taken an appeal, actually operated the apparatus at all. He was seen by the government witnesses to he bending over the apparatus handling two wires that came into the building where the radio instrument was and adjusting some screws (fol. 532-533), but there is not the slightest proof that he was operating it, though he was in faet an experienced operator. For that matter the other defendant McMasters was also a trained operator and the evidence showed that the only operation which had been actually detected was traced to him. When the officers entered, both defendants were in their shirt sleeves, both were alarmed and tried to escape. The evidence showed that Molyneaux was familiar with the premises, that he had written a letter to a friend in which he said, “ * * * it’s a heck of a scramble trying to" outwit the authorities all the time,” and that he had in a bag, among things found at the time of his arrest, orders for the purchase of supplies for radio apparatus. But, so far as the evidence goes, Molyneaux might have been on the promises to see McMasters or to get information that McMasters had received by radio, or was receiving, or to adjust or repair the apparatus. Such proof as the record contains goes no farther than to show that Molyneaux could operate the instrument and that for some reason, perhaps because he was engaged in illegal dealings in spirituous liquors (Exhibit 7), he was afraid of the public authorities. The trial judge refused to leave to the jury the question whether Molyneaux aided and abetted McMasters in operating without a license. Molyneaux could not be convicted for operating without a license, if he merely was acting as a mechanic and had not operated the apparatus in order to receive or transmit messages. The evidence on which McMasters was convicted tended to show that he alone had operated the radio instrument, and to exclude Molyneaux.
For the foregoing reasons the judgment of conviction is reversed as to the defendant Molyneaux.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_caseorigin
|
160
|
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.
TABB v. CALIFORNIA.
No. 83,
Misc.
Decided October 14, 1963.
Petitioner pro se.
Stanley Mosk, Attorney General of California, and William E. James, Assistant Attorney General, for respondent.
Per Curiam.
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of California for further consideration in light of Douglas v. California, 372 U. S. 353.
Mr. Justice Harlan, for the reasons stated in Daegele v. Kansas, ante, p. 1, would have withheld disposition of this petition for certiorari until the disposition, after argument, of that case.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_respond2_3_2
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
RELIABLE COAL CORPORATION, Petitioner, v. Rogers C. B. MORTON, Secretary of the Interior and his delegate, and the Board of Mine Operations Appeals of the Department of the Interior, Respondents.
No. 72-1477.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 8, 1972.
Decided May 3, 1973.
Brooks E. Smith, Kingwood, W. Va. (Dailey & Smith, Kingwood, W. Va., on brief), for petitioner.
Michael Kimmel, Atty., U. S. Dept, of Justice, Civil Div. (Harlington Wood, Jr., Asst. Atty. Gen., Alan S. Rosenthal, Atty., U. S. Dept, of Justice, Civil Div., J. Philip Smith, Asst. Sol., U. S. Dept, of Interior, on brief), for respondents.
Charles L. Widman, Atty., International Union, United Mine Workers of America (Edward L. Carey, and Willard P. Owens, Washington, D. C., on brief), for respondent, International Union, United Mine Workers of America.
Before BUTZNER, FIELD and WIDENER, Circuit Judges.
FIELD, Circuit Judge:
Reliable Coal Corporation seeks review of a decision of the Board of Mine Operations Appeals which affirmed the Hearing Examiner in denying Reliable’s petitions to modify certain mandatory safety standards contained in Sections 303(d)(1) and 303(Z) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 863(d)(1) and 863(Z). Additionally, petitioner complains of the Board’s determination that review of the reasonableness of time for abating a violation of Section 303(d)(1) was rendered moot upon Reliable’s compliance with the standard. 2Jurisdiction for this review is based upon Section 106, 30 U.S.C. § 816.
Under Section 301(e) of the Act, 30 U.S.C. § 861(e), the Secretary may, upon petition by an operator or the representative of miners, modify the application of any mandatory safety standard to a mine if he determines that “an alternative method of achieving the result of such standard exists which will at all times guarantee no less than' the same measure of protection afforded * * * by such standard” or that “the application of such standard to such mine will result in a diminution of safety to the miners.”
Asserting that its Kanes Creek Mine was entitled to modification of the mandatory standards of Section 303(Z) under both criteria of Section 301(c), Reliable filed its initial petition for modification on January 5, 1971. On January 7, 1971, a preshift inspection resulted in the issuance of an abatement order for violating Section 303(d)(1) of the Act to take effect January 22, 1971 Subsequent to this order Reliable filed separate petitions challenging the reasonableness of time of the order as well as the application of Section 303(d)(1) on the basis that it was in compliance with the standard by an alternative method that attains the same result and assures no less than the same measure of protection to the miners. These petitions were consolidated for hearing by the Examiner.
In both instances, the modifications sought by Reliable pertain to testing devices used to detect methane in a mine. Section 303(d)(1) requires the use of a methane detector to check for accumulations of methane within three hours immediately preceding the beginning of the shift. In lieu of the detector, Reliable would test with a permissible flame safety lamp, a device commonly used for this purpose prior to the 1969 Act. Section 303(i) requires as an additional methane detecting device that a methane monitor be installed on any electric face cutting equipment, continuous miner, longwall face equipment, and loading machine, except that no monitor is required to be installed on the equipment prior to the date such equipment is required to be permissible under Section 305(a), 30 U.S.C. § 865(a). Reliable seeks to avoid the mandate of this provision of the Act by making what it terms “continuous routine periodic checks” with a methane detector or permissible flame safety lamp. The Examiner, whose decision was affirmed by the Board, concluded that neither of the modifications proposed by Reliable would meet the requirements of Section 301(c) that they guarantee the same measure of protection to the miners as the mandatory standards. In reaching this conclusion, the Examiner rejected Reliable’s argument that he should determine whether the Kanes Creek Mine is not gassy or potentially gassy. While permitting evidence on this question at the hearing, he concluded that the Act abolished the gassy/nongassy distinction and therefore it was unnecessary for him to make a factual finding relative to the potential for methane accumulations in Reliable’s Kanes Creek Mine.
Reliable’s position on this review rests on the premise that Sections 301(c) and 305(a) of the 1969 Act, when read together, indicate that it retained the distinction of the 1952 Federal Coal Mine Safety Act between gassy and nongassy mines. Under the prior Act, a nongassy mine, a classification based on the amount of methane detected in a mine, was subject to less stringent safety standards than those imposed on a gassy mine. See, e. g., Sections 209(d) (5), (6), (7), (9), (10), and (11) of the 1952 Act, 66 Stat. 703. Reliable concedes that all mines are initially regulated by the same standards under the 1969 Act, but argues that the debate in Congress on the question of retaining the distinction resulted in a compromise provision, namely Section 301(c), which they feel permits an operator to obtain a modification upon a factual showing that there is no potential for gas accumulation in the operator’s mine. Reliable reasons that once this is established, the mine satisfies the criteria for modification as enunciated in Section 301(c). They contend that Section 301(c) does not require a finding that the alternative method of measuring methane proposed by the operator must have the same degree of refined measurement as the statutory standard, but only that it achieve the same result. From this premise Reliable argues that since no methane exists in the Kanes Creek Mine, the alternative method will guarantee no less than the same protection since the result of using either device will be the same —a zero reading of methane. Reliable also refers to Section 305(a)(2) as an indication of Congressional intent to retain the gassy/nongassy distinction since this section extends to mines not previously classified as gassy and located above the watertable substantial grace periods within which to convert their present equipment to permissible status. Under the 1952 Act, it was primarily in regard to the requirement pertaining to the use of permissible electrical equipment that the distinction between gassy and nongassy mines was significant. In sum, based on a showing that the Kanes Creek Mine is not gassy or potentially gassy, Reliable asserts that Section 301(c) should countenance the use of a permissible flame safety lamp in lieu of a methane detector; and either of these devices in lieu of the methane monitor.
The argument is flawed in every aspect, the most conspicuous being the contention that the 1969 Act retained the distinction between gassy and non-gassy mines. A review of the legislative history of the Act as contained in House Comm, on Ed. and Labor, Legislative History Federal Coal Mine Health and Safety Act, Comm.Print, 91st Cong., 2d Sess. (1970) [hereinafter cited as Leg. Hist.], convinces us that, aside from the extension periods provided for in the Act, Congress intended to eliminate any distinction between gassy and nongassy mines. While the debate in Congress relative to Section 305(a) focused on the requirement of maintaining permissible equipment, it clearly indicates a rejection of the classification as related to all safety standards since obviously the means prescribed to detect methane provides greater protection for the miners than the mere elimination of one source of igniting the gas once its presence is discovered in a working area.
As in the case of prior coal mine legislation, the 1969 Act was precipitated by a tragic mining incident, an explosion which entombed seventy-eight coal miners in the Farmington No. 9 mine located in West Virginia. Leg.Hist. at 558. Immediately, Senate and House Subcommittees conducted extensive hearings to propose new legislation designed to raise the health and safety standards of the coal mining industry and one of the major areas of concern and controversy involved the elimination of the gassy/nongassy distinction. Aside from the dust standard, no issue received as much time or attention before the Senate Subcommittee. Leg.Hist. at 222. Significantly, of the bills introduced in the Senate Hearings on S. 355, S. 467, S. 1094, S. 1178, S. 1300, and S. 1907 Before a Subcommittee of the Comm, on Labor and Public Welfare, 91st Cong. 1st. Sess. 7-447 (1969), only Senator Cook’s proposal retained the distinction, id. at 283. The Committee, which during the deliberations had rejected an amendment submitted by Senator Cooper which would have retained the gassy/nongassy classification, Leg.Hist. at 35, explained in their report accompanying the composite bill S. 2917, that “[they] followed the recommendation of the Department of Interior that all mines be treated alike, in providing these new and additional safeguards to control methane and prevent ignitions.” Leg.Hist. at 27.
During the Senate debate on the Committee Bill, Senator Cooper again introduced an amendment to retain the distinction. Leg.Hist. at 397. To accommodate the Senator’s views with respect to the financial imposition on the small mines, the substitute amendment was offered which provided mines previously classified as nongassy additional time within which to comply with the requirements of procuring permissible electrical equipment. Leg.Hist. at 474-77. The amendment recognized the economic impact on the small operator if required to convert to permissible equipment on the operative date of the Act, as well as the industrial reality that manufacturers were incapable of producing the requisite equipment within a relatively short period of time. It is manifestly clear that Section 305(a) was a compromise measure incident to the elimination of the prior classification, Leg.Hist. at 690, 742. During the debate Senator Cooper himself recognized that except for the extension periods the adoption of the substitute amendment would remove the gassy/nongassy classification, LegHist. at 481. The substitute amendment was passed and contained in the final Senate Bill, Leg.Hist. at 482, 530.
The House likewise rejected the proposals of the small mine operators urging the retention of the distinction. The House Committee, after extensive hearings on the issue, Hearings on H.R. 4047, H.R. 4295, and H.R. 7976 Before the Comm, on Ed. and Labor, 91st Cong., 1st Sess. (1969), submitted a bill, H.R. 13950, which contained provisions similar to the Senate Bill regarding the elimination of the distinction, but did provide an extended grace period for compliance. While the Bill was on the House floor members of the House were advised that acceptance of the proposed Bill contemplated the elimination of the gassy/nongassy classification. Leg.Hist. at 690. The statement of the Managers of the House relative to the Bill accepted in conference explained that Section 305(a) which eliminated the distinction adopted the language of the Senate Bill, but accepted the time provisions of the House Bill. Leg.Hist. at 1045. In the Senate debate on the conference Bill, Senator Williams submitted a summary of the major provisions of the Bill in which he unequivocally stated that “[305(a)] eliminates the distinction be-tweén gassy mines and the so-called non-gassy mines.” Leg.Hist. at 1130.
The history of the Act demonstrates beyond any doubt that Congress carefully evaluated the issue and determined that the gassy/nongassy distinction should be eliminated. Yet, Reliable contends that Section 301(c), which was not contained in the Senate Bill, but was placed in the House Bill and conference Bill, was a compromise provision which in effect affords the small mine operator the statutory means to perpetuate the distinction. Again the legislative history as well as the plain language of the Act refutes this contention. Under the statutory pattern the Secretary is directed to “develop, promulgate and revise, as may be appropriate, improved mandatory safety standards for the protection of life and the prevention of injuries in a coal mine * * This authority and the procedure incident thereto is delineated in Section-101 of the Act, 30 U.S.C. § 811. However, recognizing the urgent need for improved safety measures, interim mandatory safety standards applicable to all underground coal mines are prescribed by Sections 302 through 318 of Title III of the Act, 30 U.S.C. §§ 862-878. These provisions were designed to prescribe immediate mandatory standards without undergoing the ’lengthy administrative process for the promulgation of such standards by the Secretary under Section 101, Leg.Hist. at 50. The expeditious application of these standards to the entire coal mining industry necessarily presented a variety of problems, technical in nature, and it was necessary to give the Secretary a degree of flexibility to adjust the many detailed requirements of Title III to the particular problems of individual coal mines. This is the plain purpose of Section 301(c), but it was never intended by the Congress that modifications thereunder would be employed to dilute the statutory standards or resurrect the “gassy/nongassy” distinction.
The safety standards embodied in Title III of the Act represent an attempt by the Congress to maximize the protection of the miners based on the current knowledge and technology of the industry. These standards, however, are not to be static, but constantly upgraded to provide increased safety and, when necessary, to meet changes in technology and mining conditions. Leg.Hist. at 1040. The methane testing devices challenged by Reliable were designed by the Act to provide reasonable interim protection for the miners and assuredly it would frustrate the legislative purpose to construe Section 301(c) in a manner which would permit these standards to be lowered.
In St. Marys Sewer P. Co. v. Director of U. S. Bureau of Mines, 262 F.2d 378, 381 (3 Cir. 1959), which involved an interpretation of the 1952 Act, the Court stated:
“The statute we are called upon to interpret is the out-growth of a long history of major disasters in coal mines. * * * It is so obvious as to be beyond dispute that in construing safety or remedial legislation narrow or limited construction is to be eschewed. Rather, in this field liberal construction in light of the prime purpose of the legislation is to be employed.”
We find this observation equally appropriate to the case at hand and conclude that the Board’s interpretation of the Act carries out the plain intent of the Congress and should not be disturbed.
The order of the Board will be affirmed.
Affirmed.
. We agree with the Board’s ruling on this point and do not feel the question necessitates further discussion.
. As a result of petitioner’s purchase order for methane detectors the period of abatement was extended several times until .Tune 14, 1971. On that date, the Bureau of Mines issued a notice of abatement since the detectors had then been procured b.v Reliable.
. The methane detector is a small portable instrument about the size of a transistor radio which measures the concentration of methane in the sampled air.
. Section 303(d) (1) requires testing for methane “[with] means approved by the Secretary.” This provision was implemented by regulation, 30 C.F.R. 75.304r-3, which permitted the use of the flame safety lamp until December 31, 1970, on and after which date a methane detector was required; however, the flame safety lamp may still be used as a supplementary testing device. The express language of the statute rejecting the use of the flame safety lamp, coupled with protests in subcommittee hearings against the rejection of the lamp as an adequate testing device, indicates a Congressional determination that the flame safety lamp, when used exclusively, is inadequate for the purpose of testing for methane. See Hearings on H.R. 4047, H.R. 4295 and H.R. 7976, before a Subcommittee of the House Committee on Education and Labor, 91st Cong. 1st Sess. 138-39 (1969).
. The methane monitor is similar to the methane detector, except that it tests on a continuous basis rather than at periodic intervals, and is designed to be attached fo electrically powered mine machinery. Section 303(i) requires that the monitor be set to automatically give a warning when the methane concentration reaches one percent, and to automaticaly de-ener-gize the machinery when the methane concentration reaches two percent.
. As applied to electric face equipment, “permissible” means “the electric parts of which * * * are designed, constructed, and installed, in accordance with the specifications of the Secretary, to assure that such equipment will not cause a mine explosion or mine fire, and the other features of which are designed and constructed, in accordance with the specifications of the Secretary, to prevent, to the greatest extent possible, other accidents in the use of such equipment * * *.” Section 318 (i) of the Act, 30 U.S.C. § 878 (i).
. Section 305(a) which will be discussed in detail infra, authorizes grace periods for certain mines to comply with the mandatory standards as related to permissible equipment. With respect to the Kanes Creek Mine, the required date for installation of the methane monitors will be March 30, 1974.
. The mine was sealed ten days after the explosion and its cause remains unknown.
. St Recognition of the interim standards as the minimal protective measures acceptable to Congress is evident in the language of Section 101(b), 30 U.S.C. § 811(b) :
“No improved mandatory health or safety standard promulgated under this sub-chapter shall reduce the protection afforded miners below that provided by any mandatory health or safety standard.”
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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songer_applfrom
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Lewis M. WAGNER, Appellant, v. READING COMPANY.
No. 18119.
United States Court of Appeals, Third Circuit.
Argued Feb. 19, 1970.
Decided June 23, 1970.
Rehearing Denied July 27, 1970.
F. Ross Crumlish, Crumlish & Kania, Philadelphia, Pa., for appellant.
Denis V. Brenan, Morgan, Lewis & Bockius, Philadelphia, Pa., for appellee.
Before KALODNER and VAN DUSEN, Circuit Judges, and FULLAM, District Judge.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This case is before the court on appeal from a March 19, 1969, judgment on a verdict for plaintiff in an action under the Federal Employers’ Liability Act, 45 U.S.C. § 51 ff., for damages suffered by the plaintiff as the result of an accident during a train movement on the “Columbia Annex Run.” Wagner was conductor of a train crew assigned on March 19, 1965, to transfer cars from a main track of the railroad onto a siding, crossing a road and entering an industrial plant in Columbia, Pennsylvania. He left the engine which his crew was using and entered the plant to make sure that it was safe to move the cars and was crushed between two cars when a fellow employee allegedly moved the train without authorization or signal from the plaintiff, who was in charge. The defendant offered evidence aimed at showing that Wagner himself had given the signal which caused the cars to move. The jury found for the plaintiff but reduced its award of $11,-100. by 40% on the basis of contributory negligence. The trial judge denied plaintiff’s motion for a new trial, and Wagner now asserts several grounds for reversal on this appeal.
Cross-Examination of Medical Witness
As soon as the injury occurred, Wagner was taken to Columbia Hospital, where he was examined and operated on by Dr. Paul J. Rowan who supervised his convalescence until his release from the hospital. Dr. Rowan testified that, after x-rays were taken, exploratory surgery was performed on the plaintiff which revealed that his stomach and other internal organs had been pushed out of place, and that four of plaintiff’s ribs had been fractured. He removed plaintiff’s spleen and moved the misplaced internal organs to their proper position. Dr. Rowan notified defendant that the plaintiff was able to resume work on May 17, 1965, approximately two months after the accident. During his testimony he made reference to hospital reports made during plaintiff’s treatment which were subsequently introduced into evidence at the close of plaintiff’s case.
[1] On cross-examination, defendant’s counsel was permitted to ask Dr. Rowan, over objection, if during surgery he had discovered or detected an esophageal hiatal hernia. He answered that he had not. Plaintiff contended at trial, and he has renewed his contention on appeal, that this was improper cross-examination since it was beyond the scope of his direct examination of the doctor. We disagree. Initially it may be observed that the determination of the extent or limitation upon cross-examination of witnesses is a matter of discretion with the trial court. See Thorp v. American Aviation and General Insurance Co., 212 F.2d 821 (3rd Cir. 1954). Where, as here, a general treating physician has testified on direct examination to his diagnosis and treatment of injuries he discovered in a patient’s chest and abdominal region, it is no abuse of discretion to permit a question aimed at negating an injury to organs in this region. Our conclusion is supported by the statement in the x-ray reports to which Dr. Rowan referred during direct examination that no such hernia existed (see plaintiff’s Exhibit P-3, x-ray report of 3/30/65).
Exclusion of Wage Records from August 1966 to Time of Trial
The plaintiff testified that, after being released to return to work in May of 1965, he could not cope with the long hours required on the Columbia Annex Run where he had been working at the time of the injury, so that he took a lower paying position in the defendant’s Coatesville Yard until January 21, 1966. At that time, thinking that he would be able to perform the duties, he returned to the Columbia Annex Run, where he worked until August 1966. He left the Columbia Annex Run in that month “Because, as I stated before, after we start making a lot of overtime, and after eight hours or more I start hurting more through the chest cavity. As I get tireder I hurt more.” At that time, he went to work at the defendant’s Lancaster freight run, where he was not required to work overtime.
Dr. Rowan testified that he certified that plaintiff could return “to his usual work” on May 17, 1965. However, in response to a question on cross-examination which implied that Wagner had fully recovered at that point, the doctor replied:
“I concluded that he had reached maximum medical benefit, and that aside from the sequela which I have mentioned, he had recovered to the point where medical science could bring him.”
He also testified that the plaintiff would have “sequela,” including adhesions in the abdomen and permanent scarring in the left chest cavity, and that these residual effects of the accident would cause “distress.”
When the plaintiff sought to introduce wage records to demonstrate a differential in pay between what he could have earned had he stayed at the Columbia Annex Run and what he earned after August of 1966 on the Lancaster Run and on similar work prior to trial, the trial judge excluded the evidence over timely objection.
After careful consideration of the record, we have concluded that the possible loss of earnings after August 1966 should have been left to the jury and this ruling excluding the wage records was prejudicial error, requiring a partial new trial. Contrary to defendant’s contention, plaintiff’s medical witness did not testify that plaintiff was “fully recovered” when he released him for work in May of 1965. Rather, as noted above, he testified that he had recovered “to the point where medical science could bring him.” In view of his testimony that certain residual effects of the accident would cause the plaintiff distress, plaintiff was clearly competent tq testify to the existence of pain in his chest cavity and the jury could have believed that this pain made the longer hours on the Columbia Annex Run intolerable, as plaintiff claimed. In the context of this claim, we do not believe that medical testimony was required to establish plaintiff's inability to work when such inability was allegedly caused by pain which medical testimony had already established was the result of the accident in question. See Schultz v. City of Pittsburgh, 370 Pa. 271, 88 A.2d 74 (1952); Tabuteau v. London Guarantee & Accident Co., 351 Pa. 183, 40 A.2d 396 (1945). The case of Dixon v. Pennsylvania Railroad Company, 378 F.2d 392 (3rd Cir. 1967), relied on by the defendant, is clearly inapplicable. There a railroad signalman claimed a future loss of earnings from his alleged inability to climb, which purportedly arose from an injury suffered to his right leg. His own doctor, however, testified that the ability to climb could be determined only by climbing and the signalman had not tested his leg by attempting to climb. His employer’s doctors had cleared him for climbing work about a year after the accident. We sustained the District Court’s refusal to submit this issue to the jury on the grounds that a jury verdict would have been “sheer conjecture.” Such was not the case here, where plaintiff had in fact attempted to perform the disputed task for some six months and medical testimony had established that the pain which he claimed necessitated his taking another position was a result of the accident.
Because the above-described exclusion of evidence only concerned the damage issues, plaintiff is entitled to a new trial solely on those issues. Any award of damages at the new trial will bear interest from March 19, 1969.
Since the record justifies the jury’s findings of negligence and contributory negligence, the assessment of damages portion of the March 19, 1969, judgment will be vacated and the cause remanded for a new trial solely on the issue of damages, in accordance with the foregoing opinion.
. The District Court opinion of June 27, 1969, denying plaintiff’s motion for a new trial, is presently unreported.
. Because this contention is rejected on the merits, it is not necessary to pass on defendant’s assertion that plaintiff’s failure to raise this issue in his motion for a new trial bars him from arguing it as error on appeal. See Kiernan v. Van Schaik, 347 F.2d 775, 777 (3rd Cir. 1965); accord, Joseph T. Ryerson & Son, Inc. v. H. A. Crane & Brother, Inc., 417 F.2d 1263, 1265 n. 2 (3rd Cir. 1969).
. Defendant’s brief suggests that its interest in the condition was based on an answer by plaintiff to an interrogatory listing hiatal hernia as a medical condition for which he was going to demand damages at trial. Brief for Appellee at p. 5.
. Plaintiff’s claim that it was error for the trial judge to refuse to permit him to examine a second medical witness is without merit, since the record shows that he voluntarily withdrew the witness.
. Plaintiff’s counsel in response to a request for an offer of proof, stated that he planned to ask the company’s record clerk to testify:
“ * * * that there is a difference in wages from what he earned when he went back to work and the wages that his replacement earned until January 21, 1966, and that after he had left the Columbia Annex job in August of 1966 until the present time the wages of those who have replaced him were different from what he had earned since then.”
. Contrary to defendant's contention (pp. 8-9 of its brief), an examination of the pre-trial memoranda does not establish any limitation on the period of plaintiff’s wage loss claim. If defendant was uncertain of plaintiff’s wage claim, it should have moved that a more specific statement of this claim be stated by plaintiff in an amended pre-trial memorandum. Plaintiff’s Memorandum states (par. B(d) of Document 5): “Wage loss to be determined upon receipt of wage and absence statements.” There is no showing of exactly when such statements were furnished to plaintiff by defendant, but such statements concerning plaintiff had been furnished by the time of the first trial in December 1968 (see notes of Official Court Reporter of hearing on 3/13/69). The transcript of the first trial shows that plaintiff claimed on December 17, 1968, a wage loss from “January 20, 1966 until the present”. Also, by subpoena dated March 6, 1969, and served Friday, March 7 (ten days prior to trial, which started March 17, 1969), plaintiff demanded “all wage and absence records of the individual or individuals who worked in Mr. Wagner’s place on. the Columbia Annex run from March 1965 to the present” (see Document 17). At that time defendant was well aware of plaintiff’s wage claim and his counsel stated it in this language during a hearing sur Motion to Quash the Subpoena on March 13:
“What my suggestion was, apparently his claim is that the plaintiff could have worked but was unable to because of a physical disability causally related to the accident, could have worked on the Columbia Annex job from March of 1965 until the present.”
It is significant that the District Court did not state that it was excluding the wage records due to a limitation on plaintiff’s wage claim as expressed at the pretrial stage of the case, but the exclusion apparently was due to alleged insufficient evidence that plaintiff wanted to work on the Columbia Annex Run even if his physical condition permitted. At N.T. 155 the court stated:
“ * * * I don’t have any evidence before me from which I can conclude, except a self-serving statement by himself that his not working on these various jobs was due to his physical condition.”
We believe that plaintiff’s contention that he would in fact have worked on the Columbia Annex Run was an issue for determination by the jury.
. Also plaintiff contends that the trial judge erred in permitting defendant to show that the defendant had paid the plaintiff’s medical bills which were introduced in evidence, especially since defendant was reimbursed for such expenses by an insurance carrier. Whereas the “collateral source rule” permits a plaintiff to recover such expenses although he has been reimbursed by his own insurance carrier or where a showing has been made that the defendant itself has paid the bills, intending a gift to the plaintiff, we have found no authority for the proposition that payment by the defendant's insurance carrier qualifies as a “collateral source” within this rule and permits plaintiff to recover for damages already paid for by the defendant. Cf. Feeley v. United States, 337 F.2d 924 (3rd Cir. 1964).
. Since defendant’s objection to the improperly excluded evidence has been the cause of the delay in the final assessment of the item of damages, interest should run from March 19, 1969, on the total damages as ultimately computed.
. We have considered the other issues raised by the plaintiff on this appeal and find them to be without merit,
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_respond1_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 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".
Jerry A. PEASE, Plaintiff-Appellant, v. PAKHOED CORP., et al., Defendants-Appellees. Jerry A. PEASE, Plaintiff-Appellee, v. PAKHOED CORP., et al., Defendants-Appellants.
Nos. 91-2798, 91-6046.
United States Court of Appeals, Fifth Circuit.
Jan. 11, 1993.
Rehearing Denied in No. 91-2798 Feb. 10, 1993.
Thomas W. McQuage, Gipson & McQuage, Galveston, Tex., for Jerry A. Pease in No. 91-2798.
K.L. Carnley, John M. Helms, Dow, Cog-burn & Friedman, Houston, Tex., for Pak-hoed Corp., et al. .
Thomas W. McQuage,' Gipson & McQuage, Stephen G. Williams, Garner, Walker & Froeschner, Galveston, Tex., for Jerry A. Pease in No. 91-6046.
Before KING, WILLIAMS and SMITH, Circuit Judges.
JERRE S. WILLIAMS, CIRCUIT JUDGE:
Pease claims that his employers (collec-tivély “Pakhoed”), fired him because he refused to engage in fraudulent activities. The district court dismissed with prejudice Pease’s action because Pease failed to comply with the court’s order for a more definite statement. In No. 91-2798, Pease appeals from the district court’s order denying Pease’s Rule 60(b) Motion for Relief From Judgment. In No. 91-6046, Pakhoed appeals from the district court’s order denying Pakhoed’s Motion for Sanctions. Because these two cases arise out of the same lawsuit and involve related facts and circumstances, the parties agreed to consolidate for purposes of appeal. We agree with the district court that Pease’s claim of wrongful discharge is defective because his pleadings continually fail to reference the specific criminal laws that he alleges Pak-hoed directed him to violate. His Rule 60(b) motion fails to cure this defect. We also conclude that the district court’s denial of sanctions was within its considerable discretion. We affirm.
I. FACTS AND PRIOR PROCEEDINGS
The parties quarrel over the specifics of “who did and knew what when,” but the underlying facts that inform our decision are relatively straightforward. Pease was hired by Pakhoed in 1975 and, through a series of promotions, ultimately secured a managerial position. According to Pease, he was demoted in September 1988 because he refused to participate in a fraudulent scheme proposed by his superiors.
In early 1989, Pease consulted with Mr. David Garner, an attorney in Galveston, Texas. Garner addressed correspondence to Pakhoed and later transferred the case to Mr; Stephen Williams, a solo practitioner who had an office sharing and sublease association with Garner’s law firm. Negotiations between Williams and Pakhoed’s. in-house counsel failed to resolve Pease’s complaints, and Pease was terminated on May 12, 1989. Pease eventually filed suit in Texas state court in October 1989, alleging wrongful discharge and age discrimination. Pakhoed removed the case to federal district court.
In November 1989, shortly after removal, Pakhoed filed a Motion for a More Definite Statement. Specifically, Pakhoed requested the court to require Pease to plead his allegations with greater precision:
Plaintiff does not specifically identify the alleged conduct which he refused to take part in which allegedly resulted in his termination. While the complaint alleges that Plaintiff was terminated because of his failure to cover up, conceal or falsify material facts[,] the pleading is too vague to allow Defendants [to] file a responsive pleading.... In order for Defendants to file a responsive pleading it is necessary that Plaintiff more definitely state his grounds for estopping application of [the “employment at will”] doctrine_ Defendants are clearly entitled to know the alleged criminal act which Plaintiff was asked to. perform, (footnote omitted)
Williams failed to respond to the motion, and in April 1990 the district court, reciting Williams’s failure to respond, entered an order requiring Pease to submit an amended complaint containing a more definite statement within thirty days. Again, Williams did not respond. Pakhoed immediately filed a Motion to Dismiss. In December 1990, following a hearing that Williams failed to attend, the district court dismissed Pease’s complaint with prejudice for failure to (1) comply with the court’s earlier order requiring a more definite statement, (2) respond to the Motion to. Dismiss, and (3) appear at the- hearing. Three months later, Pease, who was unaware of the dismissal, grew dissatisfied with Williams’s representation (or lack thereof) and engaged different counsel, who informed Pease in April 1991 that his suit had been dismissed the previous December.
In May 1991, Pease’s new attorneys, Messrs. Jack Ewing and Thomas McQuage, filed a Rule 60(b) Motion for Relief from Judgment along-with supporting affidavits, a proposed amended complaint that was asserted to be in compliance with the More Definite Statement Order, and a supporting memorandum of law. The district court denied the motion. Two months later, Pakhoed moved for sanctions, claiming Pease’s unsuccessful Rule 60(b) motion violated Fed.R.Civ.P. 11 and 28 U.S.C. § 1927, The district court denied this motion also. Both Pease and Pakhoed timely appeal the denial of their respective motions.
II. DISCUSSION
A. The District Court’s Denial of Pease’s Rule 60(b) Motion
As we recently stated in Bertrand v. Sullivan, the decision to grant or deny a Rule 60(b) motion is committed to the sound discretion of the district court and is accorded deferential review. 976 F.2d 977, 979 (5th Cir.1992). Courts are disinclined to disturb judgments under the aegis of Rule 60(b). “To overturn the district court’s denial of this 60(b) motion, it is not enough that a grant of the motion might have been permissible or warranted; rather, the decision to deny the motion must have been sufficiently unwarranted as to amount to an abuse of discretion.” Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir.1977) (emphasis .added). We discern no abuse on the record before us.
The crux of Pease’s Rule 60(b) motion is. that his former attorney, Williams, essentially abandoned him once the case was transferred to federal court. Despite close monitoring by Pease and abundant assurances from Williams that the case was proceeding in the typical fashion, Pease contends that Williams actually ignored the case. This neglect, he avers, resulted in its ultimate dismissal and justifies relief under the Rule. We need not reach, however, the sharply contested issue of Williams’s deleterious conduct, although it occupies the vast portion of the parties’ briefs before this Court. A crucial threshold matter renders Pease’s plea for Rule 60(b)- relief fatally defective: neither Pease’s original complaint nor his Rule 60(b) documents assert a meritorious cause of action because they fail to reference specific criminal laws that Pease was told to violate. The district court’s Order remains unheeded.
It is well established that Rule 60(b)-requires the movant to demonstrate that he possesses a meritorious cause of action. See, e.g., Lepkowski v. United States Dep’t of Treasury, 804 F.2d 1310, 1314 (D.C.Cir.1986) (“motions for relief under Rule 60(b) are not to be granted unless the movant can demonstrate a meritorious claim or defense’’); United States v. Parcel of Land, Etc. (Woburn City Athletic Club, Inc.), 928 F.2d 1, 5 (1st Cir.1991) (“In exercising its discretion under Rule 60(b), the district court must look, inter alia, to whether the party seeking relief has a potentially meritorious claim or defense.”). The record before us demonstrates that Pease has failed to satisfy this seminal requirement.
Pease’s original complaint makes several bare and conclusory allegations regarding:
Plaintiff’s failure to and refusal to enter into or continue a conspiracy or to otherwise participate in a scheme to cover up or conceal material facts, or his refusal to falsify, conceal or cover up material facts, or his failure or refusal to make false, .fictitious or fraudulent statements or representations, or his failure and refusal to make or use a false writing or document containing a false, fictitious or fraudulent statement or entry to another by the use of the United States Postal Service' or by telephone, telegraph or other governmentally regulated means of communication.
Understandably, Pakhoed argued that Pease’s complaint was too vague to allow Pakhoed to file an adequate, responsive pleading. The trial court agreed and ordered Pease to serve an amended and more precise complaint. Particularly, the court ordered Pease to “identify specifically the alleged conduct which Plaintiff refused to take part in ... [and] any criminal law, if any, which Plaintiff refused to violate.” As previously stated, Williams never responded to the court’s Order. But of greater import here, Pease’s new counsel likewise failed to satisfy the court’s demands via their Rule 60(b) motion, as the following colloquy from oral argument illustrates:
COURT: In order to get 60(b) relief in this kind of a situation, one of the things you’re going to need to show is that you potentially have a meritorious cause of action. What kind of a showing have you made on that? There’s no point in worrying about this case unless your client is [asserting a meritorious claim].
COUNSEL: I understand. And the Defendants made a point about that in their Appellees’ brief on our appeal. The answer is this: the showing in the context of the dismissal was failure to replead by an amended complaint that showed his wrongful discharge claim. Mr. Ewing, along with his affidavit in our 60(b) motion, presented his amended complaint that he told the district court, “Here’s what I’ll file if you give me the chance, with particularized allegations of what Mr. Pease is talking about.” (Counsel proceeded to cite various provisions of the Texas Penal Code that were never mentioned in the proffered complaint)
COURT: Now did you tell the district judge this in your 60(b) motion?
COUNSEL: We sure didn’t explain the criminal statutes to him. What we did in the 60(b) motion was file or present under Mr. Ewing’s affidavit the amended complaint that set out these allegations, that Mr. Pease was being asked to participate in a scam to defraud customers.
COURT: Was there a sworn affidavit by Mr. Pease in this paper anywhere?
COUNSEL: There’s an affidavit attached to the Rule 60(b) motion. I can’t really tell you that it goes into the merits of the discharge and why it was wrongful and what he was asked to do. The affidavit relates to his explanation of why he didn’t know what was going on in this case, the Rule 60(b) issues of whether or not he had excusable neglect or mistake or inadvertence in the dismissal of the case. He didn’t make an affidavit outlining [the precise facts surrounding his discharge].
COURT: So we have no affidavit by the Plaintiff on the facts that gave rise to his discharge and thereby the Defendants’ liability?
COUNSEL: Well, I’d like to say “Yes, we do.” But .1 don’t think his affidavit goes to those issues. No, your honor. I don’t think it does.
COURT: Does [Ewing] say anywhere in his affidavit that he’s made an investigation into the facts here, and he’s persuaded that they’re well founded.
COUNSEL: Yes, your honor, he does that. My recollection of his language is “I’ve looked into this case. I’ve talked to the Plaintiff. I think it’s meritorious. I represent to the court I’ll pursue it, and here’s the complaint I’ll file if the court lets me.” So there is that much factual basis, I think, for the allegations in the complaint, that he’s examined the factual basis, at least by talking to Mr. Pease.
COURT: Why don’t you look for the material in there, because I think right now the key issue is what kind of showing is there in this record [that demonstrates Mr. Pease presents a meritorious claim].
COUNSEL (on rebuttal):' I’m afraid I’d have to admit [Pease] just does not personally allege the elements of his cause of action of wrongful discharge. He doesn’t set out the factual elements that are in the amended complaint.
As Pease’s counsel concedes, the district court’s order remains unsatisfied, and the record before us fails to demonstrate that Pease has asserted a meritorious claim of wrongful discharge. In Texas,- the employment-at-will doctrine is well settled and mandates that a worker may be terminated without cause and at the will of either party. Hancock, 800 S.W.2d at 636; Guthrie, 941 F.2d at 379. An exception to this doctrine exists for employees discharged “for the sole reason that the employee refused to perform an illegal act." Sabine Pilot, 687 S.W.2d at 735. Further, as we recently noted in Guthrie, “this narrow exception applies only to employees discharged for refusing to perform acts that carry criminal penalties.” 941 F.2d at 379 (citing generally Hancock, 800 S.W.2d 634). In Guthrie, Plaintiff claimed he was ordered to violate unspecified customs regulations, but he failed to allege that the regulations carried criminal penalties. “Consequently, he could not establish that he was discharged for refusing to perform an illegal act.” Id. at 379-80.
Our holding in Guthrie is dispositive of the instant case. As the above exchange from oral argument establishes, Pease has likewise failed to contend before the district court, either in his original complaint (that Williams filed) or in his Rule 60(b) documents (that his new counsel filed), that the activities bore criminal penalties. And contrary to Pease’s argument to this. Court, the proffered Amended Complaint fails to comport with the district court’s earlier demand for a more definite statement, particularly the plain requirement that Pease plead the specific criminal statute or statutes that Pakhoed ordered him to violate. The Amended Complaint asserts that Pease was asked to participate in a conspiracy to defraud Pakhoed’s customers and clients, but it fails to satisfy the court’s request for precise reference to criminal laws.
Moreover, Ewing’s bare assertion in his affidavit that, “this cause of action is with merit” is insufficient, absent a recitation of specific facts underlying the claim that satisfies the district court’s demands. The Tenth Circuit’s decision in Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir.1970), is analogous. In Gomes, Appellant attempted to set aside a default judgment entered against him on fraud charges by contending that he possessed a meritorious defense to the allegations: “We do have a good defense to the claim itself, but especially we have a good defense to any allegation of fraud.” The Tenth Circuit presents an instructive analysis which we apply with equal force to claims. It held:
Such a bald allegation, without the support of facts underlying the defense, will not sustain the burden of the defaulting party under Rule 60(b). [footnote omitted] In an attempt to determine the meritorious nature of a defense, the trial court must have before it more than mere allegations that a defense exists. This alone was sufficient basis to deny Rule 60(b) relief.
Id. at 1366
Similarly, Ewing’s unsubstantiated declaration that a meritorious claim exists is insufficient as a matter of law to sustain his burden under Rule 60(b).
On the record before us, we cannot hold that the district court abused its discretion in denying Pease’s Rule 60(b) Motion for Relief. Far from abusive, unwarranted, or even questionable, the district court’s order of dismissal seems wholly appropriate.
B. The District Court’s Denial of Pak-hoed’s Motion for Sanctions
In No. 91-6046, Pakhoed argues. that Pease’s Rule 60(b) motion was baseless and vexatiously multiplied- the proceedings in the case. It urges that sanctions are merited under both Rule 11 and § 1927. We do not agree.
The Supreme Court has held, “an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). We review the district court’s § 1927 determination under the same deferential standard. Browning v. Kramer, 931 F.2d 340, 344 (5th Cir.1991).
In essence, Pakhoed contends that Pease’s counsel failed to make sufficient pre-filing inquiries to support the allegations contained within Pease’s Rule 60(b) Motion for Relief. The motion, argues Pakhoed, was both factually and legally untenable and simply served to prop up a meritless claim. Although we agree with the district court that Pease’s Rule 60(b) claims are unavailing, we conclude that his contentions are not so abusive or frivolous as to violate Rule 11. At the very least, Pease’s arguments fall within the protective ambit of Rule ll’s “good faith argument” provision, mentioned earlier in note 4.
We likewise refuse to usurp the district court’s singular perspective and endorse sanctions under § 1927, a statute we have characterized as involving sanctions which are “penal in nature.” Monk v. Roadway Express, Inc., 599 F.2d 1378, 1382 (5th Cir.1979), aff'd in relevant part sub nom. Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). Under § 1927, the fees, expenses, and costs associated with “the persistent prosecution of a meritless claim” may be awarded. Thomas v. Capital Sec. Serv., Inc., 836 F.2d 866, 875 (5th Cir.1988) (en banc). We reject the arguments advanced by Pease’s counsel as unpersuasive, but the arguments are not so untenable as to be “vexatious” or “unreasonable.” Under turbulent circumstances and difficult time pressures, Pease’s new counsel came aboard and pursued Pease’s claim in an earnest, albeit unsuccessful, fashion. As we have stated: “Strict construction of this statute is necessary so that the legitimate zeal of an attorney in representing her [or his] client is not dampened.” Browning, 931 F.2d at 344; see also H.R.Conf.Rep.No. 96-1234, 96th Cong., 2d Sess., reprinted in 1980 U.S.Code Cong. & Admin. News 2716, 2781, 2782-83.
We conclude that the district court acted within its broad discretion in denying sanctions under both Rule 11 and § 1927. We perceive no compelling reason to disturb its decision. Pakhoed’s request for legal fees and expenses related to the combined appeals is denied, as is Pease’s request for costs against Pakhoed in appealing the district court’s sanction decision.
III. CONCLUSION
The district court acted properly in denying the Rule 60(b) motion and in denying sanctions against plaintiff for pursuing the Rule 60(b) motion.
AFFIRMED.
.The age discrimination claim is the subject of a cursory allegation in Pease’s original complaint. It is not raised on appeal and apparently was dropped in the district court. Under Texas law, an employee who alleges wrongful discharge for refusing to perform a criminal act cannot advance additional claims. See, e.g., Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex.1985); Hancock v. Express One Intern., Inc., 800 S.W.2d 634, 636 (Tex.App.—Dallas 1990, writ denied (Nov. 11, 1992)). Our recent decision in Guthrie v. Tifco Industries, 941 F.2d 374, 379 (5th Cir.1991) is determinative: "Because the refusal to perform an illegal act must be the sole reason for the plaintiffs discharge, Guthrie's claims of age discrimination and wrongful discharge are mutually exclusive.”
The district court retained federal jurisdiction. The vague allegations concerning activities in connection with the use of the U.S. mails and other means of communication such as the telephone and telegraph could have resulted in asserting in more specific allegations that federal criminal statutes regulating these activities possibly would have been involved.
. Pease presents a persuasive litany of Williams’s dilatory representation. In essence, Pease grew weary of Williams’s alleged failures to respond to Pease’s communications and produce requested work on Pease’s lawsuit.
. Fed.R.Civ.P. 60(b), styled "Relief From Judgment or Order,” states in pertinent part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On 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: (1) mistake, inadvertence, surprise, or excusable neglect....
. Rule 11 allows a court to impose sanctions upon an attorney or litigant who files a baseless pleading or motion, one that is not "well grounded in fact and ... warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law[.]" Section 1927 permits a court to assess excess costs, expenses, and attorney’s fees against an attorney who "multiplies the proceedings in any case unreasonably and vexatiously(.]"
. The court enumerated seven items that required more precise pleading. Of particular emphasis here, though, is the court’s plain request that Pease identify the specific criminal laws that Pakhoed ordered him to violate. Because this issue is singularly dispositive, we need not address the effect of counsel's failure to satisfy other components of the court’s Order.
. In the interest of clarity, all ellipses have been omitted.
.Counsel's loose paraphrase is largely correct. What Ewing actually stated in his affidavit is this: "I am of the belief and opinion after a thorough investigation of these documents and a lengthy conference with Mr. Pease that this cause of action is with merit and that as such, I would be willing to assume the handling of this case if it should be reinstated by the Court.”
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:
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songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Joseph E. SLEEMAN, Plaintiff-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.
No. 18534.
United States Court of Appeals Sixth Circuit.
July 25, 1969.
Paul O. Strawhecker, Grand Rapids, Mich., for appellant, Robert A. Straub, Detroit, Mich., on the brief.
F. William McKee, Grand Rapids, Mich., for appellee, Rhoades, McKee & Boer, Grand Rapids, Mich., on the brief.
Before PHILLIPS, EDWARDS and PECK, Circuit Judges.
EDWARDS, Circuit Judge.
Appellant, Chesapeake and Ohio Railway Co., appeals from an award of damages entered in favor of an employee, Joseph Sleeman, after a trial under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (1964), before a District Judge in the Western District of Michigan.
The first and principal contention is that contrary to Sleeman’s argument and the findings of the District Judge, the design and lighting of the parking lot owned by appellant railroad where Sleeman was injured did not play any part at all in his injury.
Sleeman was injured by being struck by a privately-owned mail truck as it was leaving the C & 0 station in Grand Rapids. At the time he was on duty as an assistant coach foreman working the night shift. It was raining hard when Sleeman attempted at about 5:50 a. m. to go from a coach to his car in the station parking lot, and thence to his office in the coach yard. As he was crossing an area of the parking lot in front of the C & O station which was used by both pedestrian and vehicular traffic, he was struck by the mail truck. Sleeman testified that he had looked and had seen the mail truck, but had judged that it would pass behind him and that he continued across the area without looking again until the instant of impact. The impact occurred in the left-hand portion of the vehicular accessway, viewed from the point of view of the driver of the truck.
Plaintiff presented evidence, including an expert on design of parking lots, which tended to establish that the lighting of the C & O lot at the point of injury was below nationally recognized standards and that the design of the lot failed by layout or markings to define either vehicular or pedestrian lanes.
The Federal Employers’ Liability Act provides in part:
“Every common carrier * * * shall be liable in damages to any person suffering injury while he is employed by such carrier * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” 45 U.S.C. § 51 (1964).
The Supreme Court has interpreted this language as follows:
“Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due ‘in whole or in part’ to its negligence. (Emphasis added.)
“The law was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence.” Rogers v. Missouri Pacific R. R., 352 U.S. 500, 506-507, 77 S.Ct. 443, 449, 1 L.Ed.2d 493 (1957). (Footnotes omitted.)
The District Judge was the trier of the facts in this case. We think there was evidence before him from which he could have concluded that the C & O was negligent because of inadequate lighting and failure in any manner to define either vehicular or pedestrian traffic lanes in its parking lot. We cannot say that the “employer’s negligence [did not] play * * * any part, even the slightest, in producing the injury.” Rogers v. Missouri Pacific R. R., 352 U.S. 500, 506, 77 S.Ct. 443, 448 (1957).
Appellant also contends that the District Judge erred in finding plaintiff Sleeman not guilty of contributory negligence because “the undisputed proof” was contrary. Where, however, an area of irregular shape is created for public use by vehicles and pedestrians and there is no definition of the driveway, we cannot hold as a matter of law that Sleeman’s conduct on the night in question was contrary to that of an ordinarily prudent person. Cf. Ware v. Nelson, 351 Mich. 390, 88 N.W.2d 524 (1958).
Appellant did not timely file a request for a jury trial. We find no abuse of judicial discretion in the District Judge’s denial of appellant’s belated demand for jury trial. Nor do we find such abuse in the grant of separate trial in C & O’s suit for contribution against the truck driver and owner.
No other appellate issues of substance are presented, except for one dealing with damages.
The District Judge did, as appellant asserts, decide to award damages without reducing them to present worth. He did so because he held that inflationary trends would offset any present worth reduction. See Gowdy v. United States, 271 F.Supp. 733 (W.D.Mich. 1967).
Damages in an FELA case are governed by federal law:
“[T]he proper measure of damages is inseparably connected with the right of action, and in eases arising under the Federal Employers’ Liability Act it must be settled according to general principles of law as administered in the Federal courts.” Chesapeake & Ohio Ry. v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 632, 60 L.Ed. 1117 (1916).
This same case provides:
“[I]n computing damages recoverable for the deprivation of future benefits, the principle of limiting the recovery to compensation requires that adequate allowance be made, according to circumstances, for the earning power of money; in short, that when future payments or other pecuniary benefits are to be anticipated, the verdict should be made up on the basis of their present value only.” Chesapeake & Ohio Ry. v. Kelly, supra at 491, 36 S.Ct. at 632.
To date Chesapeake & Ohio Ry. v. Kelly has not been amended or overruled, and it was error to fail to apply it to the computation of future earnings.
As to the inflationary trend offset, this record provides no evidentiary basis for the decision of the District Judge. Gowdy v. United States, supra, in which the District Judge arrived at the same conclusion after hearing some economic testimony is not authority for the offset in this case, since it has been reversed on other grounds. Gowdy v. United States, 412 F.2d 525 (6th Cir.1969) Nor do we encourage the trial courts of our circuit to explore such speculative influences on future damages as inflation and deflation.
Of course, the nation’s economic history since the 1930’s would appear to make the use of present wages as the standard for loss of future earnings somewhat unfair to plaintiffs. But as to the future, the inflation versus deflation debate rages inconclusively at the highest policy levels of our government, in national electoral campaigns, in learned economic journals and is exemplified in the daily gyrations of the stock markets. The debate seems unlikely to be resolved satisfactorily in one personal injury trial. And if testimonal resolution of this factor bearing on the future is attempted, the door is opened to similarly speculative and debatable offsets tending in other directions. See McWeeney v. New York, N. H. & H. R. R., 282 F.2d 34 (2d Cir.1960).
Harper" & James accurately describes the past history of this debate and the present prevailing view:
“Future trends in the value of money are necessarily unknown and so always render such damages speculative in a way we cannot escape. If the estimates represent a straight-line projection of present living costs, they will be frustrated by fluctuations either way. If prophecy of change is heeded, frustration will follow if no change, or the opposite change, occurs. When courts have consciously grappled with the problem they have either found all prophecy too speculative and so, perforce, have taken the equally speculative course of betting on a continuance of the status quo; or they have made intuitive and not always very wise judgments that present conditions represent a departure from some imaginary norm to which they think we shall rapidly return. It is not at all clear that courts would be willing to hear experts on the matter, or that they would get much real help if they did. For the most part the problem —which is inevitably present in every case of future loss — is not analyzed and the present value of money is assumed to be the proper basis.” II F. Harper & F. James, The Law of Torts § 25.11 (1956). (Footnotes omitted.)
Sleeman’s injuries were severe and there was evidence that they would have permanent effect. The award (save for the present worth issue) is justified by the evidence and certainly does not shock our conscience.
The judgment of the District Court on issues of liability and damage is affirmed, except as noted. The judgment is vacated and remanded for recpmputation of damages for future earnings based on the present worth formula of Chesapeake & Ohio Ry. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117 (1916).
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_respond1_1_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
Harry BERKOWITZ, Guardian of the Estate of Wilson Kinch, a Minor, and Wilson Kinch, Appellants, v. PHILADELPHIA CHEWING GUM CORPORATION.
No. 13762.
United States Court of Appeals Third Circuit.
Argued Feb. 9, 1962.
Decided May 31, 1962.
Frank M. Jakobowski, Philadelphia, Pa., for plaintiff-appellant.
David L. Pennington, Philadelphia, Pa. (Joseph R. Thompson, Philadelphia, Pa., on the brief), for defendant-appellee.
Before BIGGS, Chief Judge, and GOODRICH and McLAUGHLIN, Circuit Judges.
BIGGS, Chief Judge.
The issue presented by the appeal at bar is said to be whether there has been a rejection of the provisions of The Pennsylvania Workmen’s Compensation Act, 77 P.S. § 1 et seq., so as to allow a suit on behalf of the minor against his employer as at common law. For reasons which will appear hereinafter we do not reach this question.
Wilson Kinch, when he was 18 years old, got a job with the defendant, Philadelphia Chewing Gum Corporation. Soon thereafter he sustained serious injuries by getting his right hand caught in a machine at the chewing gum factory. Forty-eight days after the injury an attorney representing Kinch wrote to the Chewing Gum Corporation and stated that Kineh’s parents desired not to have their son take compensation under the Act but that they elected to pursue a claim on his behalf “under the theory of * * * common law liability”. On October 31, 1960, a so-called notice of election was sent to the Director of the Bureau of Workmen’s Compensation of the Commonwealth of Pennsylvania, stating that Kinch was not subject to the Workmen’s Compensation Act, that steps were being taken to proceed against his employer “under our theory of common-law liability”, and that a suit would be instituted against the Company.
The original complaint was filed on November 14, 1960. A motion was filed by the defendant to dismiss the action because it appeared “on the face of the Complaint” that the court lacked jurisdiction “in that the requisite diversity of citizenship is not shown to exist”. The court below filed a memorandum opinion and granted the motion to dismiss unless an amended complaint were filed within twenty days. An amended complaint was filed on March 24, 1961. One difference between the original and the amended complaints is that the latter sets out in Paragraph 9 that following the injury Kinch, by his representative, informed the Chewing Gum Corporation and the Department of Labor of the Commonwealth of Pennsylvania that it was his intention not to make a claim for his injuries under the provisions of the Act but rather to proceed against his employer under the theory of common law liability and that the suit at bar was brought “by his legally appointed guardian” in pursuance of that objective.
The original complaint is entitled “Harry Berkowitz, Guardian of the Estate of Wilson Kinch, a Minor, and Wilson Kinch, Individually 1458 Wildwood Avenue Camden, New Jersey, Plaintiffs v. Philadelphia Chewing Gum Corporation Eagle and Lawrence Roads Havertown, Pennsylvania, Defendant”. The title of the amended complaint is the same except that the word “Individually” has been omitted after the word “Kinch”, second occurrence. The first paragraphs of both complaints are identical and allege that the matter in controversy exceeds, exclusive of interest and costs, the sum of $10,000 and that the court has jurisdiction on the basis of diversity of citizenship of the parties and the amount in controversy. There is no specific allegation as to the citizenship of Wilson Kinch albeit Paragraph 3 of both the original and the amended complaints states: “Plaintiff Wilson Kinch is a minor child, aged twenty years, who at all times material hereto was a resident of Delaware County, Pennsylvania.” The second paragraph of both the original and the amended complaints asserts: “Plaintiff Harry Berkowitz is an adult individual, appointed guardian of the Estate of Wilson Kinch, a Minor, by the Orphans’ Court of Delaware County, Pennsylvania, and is a citizen of the United States, in the State of New Jersey.”
The Chewing Gum Corporation filed a motion to dismiss the action again on the ground, among others, that “it appears on the face of the Complaint that the court lacks jurisdiction of the subject matter in that the requisite diversity of citizenship is not shown to exist.” The court below dismissed the action on the ground that notice of the minor’s intention not to be bound by The Pennsylvania Workmen’s Compensation Act was not sent within the time specified by 77 P.S. § 461. The court did not pass upon any issue relating to diversity of citizenship. In fact the court stated in the final paragraph of its opinion: “It is also noted that the minor’s name was improperly included in the caption in view of lack of diversity of citizenship as to him.” 198 F.Supp. 351, 354 (1961).
The issue of jurisdiction is always open. Mitchell v. Maurer, 293 U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338 (1934). Kinch himself is named as a party plaintiff in the original and in the amended complaint though the latter has omitted the word “Individually” from the title after Kinch’s name. There is no allegation in the body of either the complaint or the amended complaint that Kinch is a citizen of some other state than the Commonwealth of Pennsylvania. The problem may go deeper, however, than the possible lack of complete diversity caused by what may be the unnecessary joinder of the minor. These further difficulties are created by the attempt under the circumstances to solve the diversity problem by having a citizen of New Jersey appointed to act in some capacity for the minor. The title of the cause alleges that Berkowitz is guardian of the estate of Wilson Kinch, a minor, and both the original and the amended complaints allege that Berkowitz was appointed guardian of the estate of Kinch. We may take and we do take judicial notice of the fact, however, that the petition of Kinch’s parents in the Orphans’ Court of Delaware County, Pennsylvania (798-1960), entitled “Re Estate of Wilson Kinch, a Minor”, is a petition for the appointment of a guardian ad litem; and that the “Consent of Parents” attached to the petition is for the appointment of a guardian ad litem for the purposes of bringing suit for personal injuries to the minor; that the acceptance by the proposed guardian ad litem is an acceptance of an appointment “as a guardian ad litem of the Estate of Wilson Kinch, a Minor * * * ”; and finally that the decree of the Orphans’ Court of Delaware County appointed Berkowitz “guardian ad litem of Wilson Kinch, a minor.”
If it is the fact, as seems to be the case, that Berkowitz was appointed not as guardian of the estate of Kinch but as guardian ad litem, he cannot have the status of a general guardian of the estate of Kinch, despite the express allegations in the amended complaint to that effect. If Berkowitz as Kinch’s guardian ad litem had brought suit in a Pennsylvania state court, he would have had to have brought it pursuant to Rule 2028 (a) of the Pennsylvania Rules of Civil Procedure, 12 P.S.Appendix. If he had been appointed a general guardian he would appear in the suit- as a real plaintiff t.o enforce the right owned by him in a fiduciary capacity. See GoodrichAmram Standard Pennsylvania Practice § 2027-1 and 2. The Federal Rules of Civil Procedure also appear to make such a distinction. See Rule 17(c), 28 U.S.C. It may be, of course, that Kinch was a citizen of New Jersey at the time the suit was instituted, in which event it may be that allegations of pleading which now seem defective and deficient may be amended, if the court below shall see fit, pursuant to Section 1653, Title 28 U.S.C. If this is not the case,, the question of whose citizenship is controlling in a guardian ad litem, action must be answered. In any event the court below must determine whether or not there is diversity jurisdiction. We cannot do so on the present record. Jurisdictional questions should be determined as early as possible in a litigation. Underwood v. Maloney, 256 F.2d 334, 340 (3 Cir.), cert. denied, 358 U.S. 864, 79 S.Ct. 93, 3 L.Ed.2d 97 (1958).
The judgment of the court below is vacated and the case is remanded with instructions to proceed in accordance with this opinion.
. See Exhibit “A” to document No. 4.
. See Exhibit “B” to document No. 4.
. As to possibly related problems of diversity jurisdiction, see Corabi v. Auto Racing, Inc., 264 F.2d 784, 75 A.L.R.2d 711 (3 Cir. 1959) and Jamison v. Kammerer, 264 F.2d 789 (3 Cir. 1959). See also Fallat v. Gouran, 220 F.2d 325-326 (3 Cir. 1955). In Fallat the appointment of a general guardian of Fallat was made pursuant to the Pennsylvania Incompetents’ Estates Act of 1951, Pa.Laws 1951, P.L. 612, 50 P.S. § 1631 et seq. In Corabi there was no doubt since Corabi was appointed administrator d. b. n. of Brunn’s estate that ho had the capacity to sue whether or not he was the real party in interest and that Jamison was in a similar situation in the thirty-four Jamison cases.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_genapel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
AINSWORTH ARISTOCRAT INTERNATIONAL PTY. LIMITED, Plaintiff, Appellant, v. TOURISM COMPANY OF the COMMONWEALTH OF PUERTO RICO, et al., Defendants, Appellees.
No. 86-1835.
United States Court of Appeals, First Circuit.
Heard Feb. 6, 1987.
Decided May 18, 1987.
Harry Anduze Montano, Santurce, P.R., for plaintiff, appellant.
James D. Noel III with whom Ledesma, Palou & Miranda, Hato Rey, P.R., was on brief, for defendant, appellee Bally Mfg. Corp.
J.Ramon Rivera-Morales with whom Jimenez, Graffam & Lausell, San Juan, P.R., was on brief, for defendant, appellee Intern. Game Technology.
Before COFFIN, Circuit Judge, WISDOM, Senior Circuit Judge, and BOWNES, Circuit Judge.
Of the Fifth Circuit, sitting by designation.
WISDOM, Senior Circuit Judge:
This appeal presents questions concerning the propriety of the district court’s decision to dismiss an action brought by Ainsworth Aristocrat International Pty, Ltd. (“Ainsworth”) against the Tourism Company of the Commonwealth of Puerto Rico, Bally Manufacturing Company (“Bally”), and International Game Technology (“IGT”). The district court dismissed the action on two grounds: The Court concluded that the Puerto Rico Tourism Company, an indispensable party, was immune from suit in federal court under the Eleventh Amendment and that the plaintiff failed to exhaust its administrative remedies before filing suit in federal court. We conclude that the district court failed to apply the proper test in deciding whether the Tourism Company is an arm of the state protected by immunity under the Eleventh Amendment. The record on appeal is, however, insufficient for us to apply that test. Because the Eleventh Amendment issue is jurisdictional in nature, we conclude that it would be inappropriate to reach the exhaustion issue until it is clear that this court has jurisdiction over this controversy. We therefore remand the Eleventh Amendment issue to the district court.
FACTS
Ainsworth, the plaintiff in this action, is an Australian corporation engaged in the business of distributing slot machines. Two of the defendants in this action, Bally and IGT, are competing manufacturers of slot machines. The'remaining defendant, the Tourism Company of the Commonwealth of Puerto Rico is a public corporation and “instrumentality” of the Commonwealth of Puerto Rico. The Company owns all slot machines in Puerto Rico and oversees their operation.
In November 1985, the Tourism Company published an invitation to bid and notice of public auction for the purchase of 1500 slot machines. Ainsworth, Bally, and IGT were among the parties who submitted bids. After analyzing the bids, the Tourism Company awarded half of the purchase order to the distributor of the machines manufactured by Bally and half to the distributor of the machines manufactured by IGT.
In January 1986, Ainsworth filed an appeal before the Bid Appeal Board contending that in awarding the contract, the Tourism Company had violated various sections of their Purchase, Supply and Bid Regulation (the “Regulation”). The Bid Appeal Board issued an order temporarily staying the execution of any contract by the Tourism Company while the appeal was pending. The continuance of the stay was conditioned upon Ainsworth’s compliance with the appeal bond requirements of the Regulation.
In February 1986, Ainsworth submitted a purported bond. The Bid Appeal Board concluded that the bond offered was unacceptable and allowed Ainsworth 10 days to correct the defects. Rather than attempting to correct the defects, Ainsworth argued that the bond offered was sufficient. In June 1986, the Bid Appeal Board ruled that the proposed bond was defective and therefore dismissed the administrative appeal.
Ainsworth then filed suit in the Federal District Court for the District of Puerto Rico, naming the Tourism Company, Bally, and IGT as defendants, and alleging that the Tourism Company had not conducted the auction in accordance with its Regulation and had therefore violated Ainsworth’s right under the Fourteenth Amendment to due process and equal protection. The complaint requested a declaratory judgment and an injunction against the Tourism Company requiring the Company to award the contract to Ainsworth.
On the defendants’ motion, the district court dismissed the action on two grounds. The district court held that the Tourism Company, an indispensable party, was an arm of the state protected by the Eleventh Amendment. The district court also concluded that Ainsworth could not pursue an action in federal court because it had failed to exhaust its administrative remedies. Ainsworth now appeals.
DISCUSSION
We turn first to the Eleventh Amendment issue because that issue goes to whether the district court had jurisdiction over the action. When an action is brought against a public agency or institution, the application of the Eleventh Amendment depends upon whether the entity “is to be treated as an arm [or alter ego] of the State partaking of the State’s Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend”.
The district court concluded that the Tourism Company;
is a public corporation funded by the Government of Puerto Rico which functions as an alter ego of the state in accomplishing the public purpose of operating a tourism industry for the island. See generally 23 L.P.R.A. Sections 671, et. seq. ... The Tourism Company operates from funds which are put into separate accounts but entrusted to recognized depositaries of the funds of the Government of Puerto Rico, 23 L.P.R.A. § 671; in addition, the nature of this industry mandates its integral relationship to the welfare of the island and the public treasury. In particular, the nature of this type of contract involving gambling in the casinos of Puerto Rico touches upon a very sensitive issue implieating the public image of the Government of Puerto Rico, and requires a judicious and careful exercise of discretion on the part of state officials. For these reasons, we find that the state is the real party in interest in this proceeding and that the Tourism Company is an arm of the state protected by the Eleventh Amendment against a suit of this sort by a disappointed bidder in Federal Court.
Because Ainsworth had requested relief only against the Tourism Company, the district court concluded that the suit should be dismissed.
We are concerned, however, that in considering whether the Tourism Company was an arm of the state, the district court failed to apply the appropriate test. In making this decision, courts generally agree that a trial court should consider:
local law and decisions defining the status and nature of the agency involved in its relation to the sovereign____ Among the other factors, no one of which is conclusive, perhaps the most important is whether, in the event the plaintiff prevails, the payment of the judgment will have to be made out of the state treasury; significant here also is whether the agency has the funds or the power to satisfy the judgment. Other relevant factors are whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; the degree of autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation, and whether the sovereign has immunized itself from responsibility for the agency’s operations.
The Puerto Rico statutes dealing with the Tourism Company declare that the Company is separately incorporated and has a “legal existence and personality independent of the Commonwealth Government”. They also declare that the Commonwealth of Puerto Rico will not be responsible for the debts of the company. The Company’s Board of Directors, most of whom are appointed by the Governor, and the Company’s Executive Director, who is selected by the Board, apparently exercise broad powers with a great deal of discretion and autonomy. The Company’s powers include the following: to sue and be sued; to control its own properties and funds; to enter into contracts; and to make loans and issue bonds. The Company is largely funded through the monies it receives as a result of its slot machine concessions. Although the Company exercises a traditional governmental function in its promotion of tourism and oversight of gambling within Puerto Rico, its activities as a purchaser and supplier of slot machines are not alien to a proprietary function. Finally, we emphasize, as pointed out earlier, that the Commonwealth of Puerto Rico has declared that it will not be responsible for the debts of the Company and that the creditors of the Company may look only to the Company for satisfaction of its debts. These factors point toward the conclusion that the Tourism Company is not an arm of the state.
It must be admitted, however, that several factors point toward a contrary conclusion. The Company is by statute an “instrumentality of the Government of Puerto Rico”, and its property is exempt from Puerto Rico taxes and fees. The Company may exercise the power of eminent domain. The Comptroller of Puerto Rico examines the financial records of the Company once a year, and the Company submits financial and progress reports to the Governor at the beginning of each legislative session.
Although the factors weigh in favor of finding that the Tourism Company is not an arm of the state, we are not prepared at this point to make such a finding. Such a finding would be premature given the dearth of information in the record concerning the crucial factor of the actual day-to-day financial and operational autonomy of the Company. The record is surprisingly sparse as to the extent of governmental control. Significant in this respect is whether the Company continues to receive significant funding or support from the Commonwealth of Puerto Rico and whether the Governor or anyone in his administration exerts significant direct influence over the daily operations of the Company. The decision whether a state institution or entity is an arm of the state for Eleventh Amendment purposes should not be made without a full examination of all the factors. We therefore remand this matter to the district court for a full hearing on the Eleventh Amendment issue.
The district court also decided that Ainsworth’s action should be dismissed because Ainsworth failed to exhaust its administrative remedies. We conclude, however, that it would be inappropriate for this court to reach that issue. Although the Eleventh Amendment issue is jurisdictional in nature, the requirement that a plaintiff exhaust its administrative remedies is not a strict jurisdictional requirement in this case. A court must determine whether it has jurisdiction before it can proceed to the merits. Because it is not clear that the Eleventh Amendment does not bar Ainsworth from pursuing this action in federal court, we conclude that it would be inappropriate to reach the exhaustion issue.
We recognize that this action may become moot before it is fully resolved. Ainsworth has requested only a declaratory judgment and an injunction awarding the contract in question to it. This controversy would therefore arguably be moot if the contract in question were performed before the controversy was resolved by the courts, because no appropriate relief could be granted. We have been informed by counsel that performance is well under way and will be completed shortly. Although we could issue an injunction and stay the completion of the contract pending disposition of this action, it is clear that Ainsworth does not come close to meeting the requirements necessary for such a stay.
The parties agree that the applicable standards for a party seeking such a stay are 1) a strong showing that he is likely to succeed on the merits, 2) a showing that unless a stay is granted he will suffer irreparable injury, 3) a showing that no substantial harm will come to the other interested parties, and 4) a showing that a stay will do no harm to the public interest. In denying Ainsworth’s motion for a stay of performance of the contract pending appeal, we concluded that there was no significant likelihood of irreparable harm if the stay was not granted. Turning to the remaining requirements, we conclude that Ainsworth has failed to establish any of them.
Although Ainsworth may succeed on its Eleventh Amendment argument, there is little possibility that it will succeed on the merits because the district court’s decision to dismiss on the grounds of exhaustion is almost certainly correct — although it would be premature for this court to affirm the dismissal of Ainsworth’s action on that ground at this time. Ainsworth has argued that the district court’s decision was incorrect because the appeal bond that it filed was proper and, alternatively, the appeal bond requirement is unreasonable or unconstitutional. We have examined these arguments and conclude none of them likely has any merit.
Ainsworth has also failed to show that a stay will not significantly harm other interested parties or the public interest. Indeed, the record shows that a stay would in fact cause such harm. According to sworn and uncontradicted affidavits, the previous delay caused by the Bid Appeal Board’s stay cost the Tourism Company and the Commonwealth of Puerto Rico approximately $790,000 per month. Although a delay in the performance of the contract at this point would likely not be as costly, there is no question that the revenue loss caused by a delay would be substantial.
Because Ainsworth has failed to meet the four requirements necessary for a stay, we conclude that a stay of the performance of the contract would be inappropriate.
CONCLUSION
We conclude that the district court failed to apply the proper test in determining whether the Tourism Company is protected by the Eleventh Amendment. The record is, however, insufficient for this court to apply that test. We therefore reverse the decision of the district court and remand this matter to the district court for further proceedings not inconsistent with this opinion.
. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984) (Eleventh Amendment issue is one of jurisdiction); Clay v. Texas Women’s Univ., 728 F.2d 714, 715 (5th Cir.1984) (same). The Eleventh Amendment provides;
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const, amend. XI.
. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977).
. That Ainsworth requested prospective relief against the Tourism Company was irrelevant. Pennhurst State School & Hosp., 465 U.S. at 100, 104 S.Ct. at 908 ("[A] suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. This jurisdictional bar applies regardless of the nature of the relief sought.”) (citations omitted).
. Blake v. Kline, 612 F.2d 718, 722 (3d Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980) (quoting Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247, 250-51 (3d Cir.1969), cert. denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 129 (1970)); accord Hall v. Medical College of Ohio at Toledo, 742 F.2d 299, 302 (6th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985) (quoting Blake, 612 F.2d at 722); see also Jacintoport Corp. v. Greater Baton Rouge Port Comm’n, 762 F.2d 435 (5th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 797, 88 L.Ed.2d 774 (1986); George R. Whitten, Jr., Inc. v. State University Constr. Fund, 493 F.2d 177 (1st Cir.1974). The entity’s financial and operational autonomy is often one of the most significant of the factors. See, e.g., Blake, 612 F.2d at 723 & 725; Jacintoport Corp., 762 F.2d at 440 & 442; Laje v. R.E. Thomason Gen. Hosp., 665 F.2d 724, 727 (5th Cir.1982); cf. George R. Whitten, Jr. Inc., 493 F.2d at 180. Financial autonomy is important even when the plaintiff is primarily requesting injunctive relief. Cf. Jacintoport Corp., 762 F.2d 435.
. 23 L.P.R.A. § 671a.
. 23 L.P.R.A. § 671k.
. 23 L.P.R.A. § 671b.
. 23 L.P.R.A. § 671c.
. 23 LJP.R.A. § 671d; see generally Hall, 742 F.2d at 306 (discussing operational autonomy); DeSantis v. Ricci, 614 F.Supp. 415, 421 (D.C.N.J. 1985) (same).
. 23 L.P.R.A. § 671d(e).
. 23 L.P.R.A. § 671d(f).
. 23 L.P.R.A. § 671d(g).
. 23 L.P.R.A. § 671d(/).
. See 15 L.P.R.A. § 74.
. 23 L.P.R.A. § 671e; 15 L.P.R.A. § 76a. See Rosenthal v. Nevada, 514 F.Supp. 907, 913 (D.Nev.1981) (Nevada Gaming Commission and State Gaming Control Board are arms of the state); see also Production & Leasing, Ltd. v. Hotel Conquistador, Inc., 709 F.2d 21, 21-22 (9th Cir.1983) (per curiam) (same). But cf. Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Rhode Island Lottery Comm’n, 553 F.Supp. 752 (D.R.I.1982) (Rhode Island Lottery Commission does not enjoy Eleventh Amendment immunity).
. 15 L.P.R.A. § 71.
. 23 L.P.R.A. § 671k.
. 23 L.P.R.A. § 671a.
. 23 L.P.R.A. § 671o.
. 23 L.P.R.A. § 671/. But see C.H. Leavell & Co. v. Board of Comm’rs., 424 F.2d 764 (5th Cir.1970) (agency with power to acquire property by eminent domain found not to be an arm of the state); Laje, 665 F.2d 724 (same).
. 23 L.P.R.A. § 671i. This, however, is apparently nothing more than a routine audit. See Tradigrain, Inc. v. Mississippi State Port Auth., 701 F.2d 1131, 1137 (5th Cir.1983) (Thornberry, J., dissenting) (that state conducts routine audit is relatively insignificant factor in assessing whether an entity is an arm of the state).
. 23 L.P.R.A. § 671j.
. A decision on the status of the Tourism Company would also be premature for another reason. Perhaps as a tactical maneuver, Ainsworth waited until its reply brief to argue in earnest that the Company is not an arm of the state. As a result, the appellees have not had an opportunity to argue the issue. In these circumstances it would be unfair to rule in favor of Ainsworth without giving the appellees the opportunity to rebut Ainsworth’s arguments.
. See generally Blake, 612 F.2d 718 (remanding to the district court the question whether the Public School Employees’ Retirement Board of Pennsylvania is an alter ego of the state).
The appellees rely on Rosado Maysonet v. Solis, 409 F.Supp. 576 (D.P.R.1975), and Nadal v. Puerto Rico Tourism Development Co., 399 F.Supp. 1222 (D.P.R.1975), for the position that the Tourism Company is protected by the Eleventh Amendment. In both cases, the district court held that the Tourism Company’s predecessor was not a “person” under 42 U.S.C. § 1983. The appellees apparently argue that these cases support the position that the Tourism Company is properly characterized as an arm of the state rather than as a political subdivision, because political subdivisions are "persons” under § 1983, see, e.e., Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 2019, 56 L.Ed.2d 611 (1978), and states are not, see, e.g., Thompson v. New York, 487 F.Supp. 212, 226 (N.D.N.Y.1979). But see, e.g., Marrapese v. Rhode Island, 500 F.Supp. 1207, 1212 (D.R.I.1980) (states are "persons” under § 1983).
The flaw in this argument, however, is that Rosado Maysonet and Nadal were both decided before the Supreme Court overturned Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and held that political subdivisions are "persons” under § 1983. See Monell, 436 U.S. 658. When Rosado Maysonet and Nadal were decided, neither the states nor their political subdivisions were "persons” under § 1983. Rosado Maysonet and Nadal did not, therefore, address whether the Tourism Company should be characterized as an arm of the state or as a political subdivision. As such both cases are inapposite.
. Pennhurst State School & Hosp., 465 U.S. at 100, 104 S.Ct. at 908; Clay, 728 F.2d at 715.
. Holloway v. Gunnell, 685 F.2d 150, 152 n. 2 (5th Cir.1982); South Dakota v. Andrus, 614 F.2d 1190, 1192 n. 1 (8th Cir.), cert. denied, 449 U.S. 822, 101 S.Ct. 80, 66 L.Ed.2d 24 (1980). Although an exhaustion requirement may be jurisdictional in nature when the plaintiffs cause of action is provided by a statute that also establishes a scheme of administrative remedies and requires that the plaintiff exhaust these remedies before seeking judicial relief, this case does not involve such a statute.
. See Fauconniere Mfg. Corp. v. Secretary of Defense, 794 F.2d 350, 351-52 (8th Cir.1986); James Luterbach Constr. Co. v. Adamkus, 781 F.2d 599, 602-03 (7th Cir.1986).
. See Martinez Rodriguez v. Jimenez, 537 F.2d 1, 2 (1st Cir. 1976).
. Ainsworth has also argued that the administrative remedies available were inadequate. We conclude that this argument is also likely without merit.
. The record is, however, unclear as to whether any portion of this loss was offset by the operation of slot machines that would have been replaced. Because Ainsworth has made no attempt to argue this point, we assume that the amount being offset is relatively insignificant.
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_r_bus
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
John N. DUNHAM, Administrator of the Estate of Dorothy Louise Sipling, deceased, Appellant, v. Frederick W. WRIGHT and Frederick M. Wright.
No. 18077.
United States Court of Appeals, Third Circuit.
Argued Jan. 20, 1970.
Decided March 19, 1970.
Lewis H. Markowitz, Markowitz, Kagen & Griffith, York, Pa., for appellant.
John C. Dowling, Huette F. Dowling, Dowling & Dowling, Harrisburg, Pa., for appellees, (Dowling & Dowling, Harrisburg, Pa., on the brief).
Before FORMAN, SEITZ and ADAMS, Circuit Judges.
OPINION OF THE COURT
ADAMS, Circuit Judge.
Legal-medico jurisprudence requires that a physician obtain the consent of a patient before performing surgery unless the need for such consent is obviated by an emergency which places the patient in immediate danger and makes it impractical to secure such consent. This blackletter rule, clear and simple on its face, has occasioned courts in many jurisdictions to grapple with defining the elusive concepts of “consent” and “emergency.” These concepts require courts to develop a delicate balance between the right of the patient to choose the treatment he wishes to undergo and the freedom of the physician to practice responsible and progressive medicine without fear of frequent litigation.
In this suit, brought after the unfortunate death of Mrs. Dorothy Louise Sip-ling following surgery, we are called upon to explore the necessary elements of these concepts which have evolved from attempts to understand the proper relationship between physician and patient and to protect the right of the patient to decide whether “he will take his chances with [an] operation, or take his chances of living without it.”
The action here, instituted by decedent’s administrator pursuant to diversity jurisdiction, seeks to hold defendant physicians, Dr. Frederick W. Wright and his son, Dr. Frederick M. Wright, responsible for Mrs. Sipling’s death which occurred after a thyroidectomy operation performed by the elder Wright. Plaintiff alleged at trial that the operation was performed negligently, and without a valid consent by the decedent or her husband. Although defendants obtained two signed form consents, plaintiff contended that these forms were ineffective because the defendants failed to alert Mrs. Sipling or her husband to the dangers inherent in the operation and failed to advise them of the alternative methods of treating Mrs. Sipling’s condition.
The case was tried by the Honorable William J. Nealon and a jury. After five days of testimony the jury was requested to determine whether defendants were negligent in preparing the decedent for the operation, whether defendants obtained consent to the operation, or whether an emergency existed thus eliminating the need for consent. The jury returned a verdict for the defendants.
Plaintiff filed motions for judgment n. o. v. or in the alternative for a new trial. They were denied. In those motions, and on this appeal, plaintiff asserts that there was as a matter of law insufficient evidence to permit the jury to conclude that defendants obtained an “informed” consent, or that an emergency existed so as to permit defendants to operate without such consent. Plaintiff also contends that the charge to the jury was incorrect on the issues of consent and emergency. Since plaintiff is appealing primarily from the dismissal of a motion for judgment n. o. v., we are required to consider the facts surrounding Mrs. Sipling’s operation in the light most favorable to the defendants.
Mrs. Sipling, who was suffering from an “extremely toxic goiter”, was referred to the defendants by her family physician in order “to have thyroid surgery performed.” The first consultation with Dr. F. W. Wright was on December 12, 1963. In his opinion, “she was one of the most extremely seriously ill women due to her goiter that [he had] ever seen”. Indeed, he “felt that she was an emergency”, and had her admitted immediately to the Hanover Hospital. Dr. F. W. Wright stated that the first time he saw her, he told her and Mr. Sipling that the only possible way she could recover was to have surgery performed, and that thyroid surgery was “serious”. Mr. Sipling conceded that the first time he and Mrs. Sipling met with Dr. F. W. Wright, the doctor advised there would be an operation.
When Mrs. Sipling was admitted to the hospital, both she and her husband signed an authorization for medical and surgical treatment. In the hospital she was given drugs to get her thyroid gland in an “euthyroid” state before the operation. Although seriously ill, she was permitted to go home for the Christmas holidays. The defendants saw her in their office on January 16, 1964. Her condition had deteriorated, and she was again admitted as an emergency patient. At the time of the second admission, another authorization was signed by Mrs. Sipling.
Mr. Sipling testified that whenever he asked Dr. F. W. Wright when he was going to operate, Dr. Wright told him that Mrs. Sipling would be operated on “as soon as her pulse was down and her nerves calmed down.” Dr. F. W. Wright testified that he “talked to Mr. Sipling frequently and told him that [he] would operate on [his wife] as soon as [he] felt that she was in good enough condition to be operated on.” He said he “couldn’t tell the exact day, but [he] told him at one stage that it would be done on either of the following two days.”
Dr. F. W. Wright testified that on February 6, 1964, the point was reached where the drugs had begun to lose their effectiveness, and if she were not operated on at that particular time she might never have been able to have an operation. Dr. F. W. Wright performed the operation that day. Mrs. Sipling died on February 7th at 1:30 a.m.
Since jurisdiction here is predicated on diversity and inasmuch as the decedent and her husband are citizens of Pennsylvania and the operation was performed in that state, it is clear that Pennsylvania law is controlling.
The parties do not contest the general principle that in the absence of an emergency the patient’s consent is a prerequisite to a surgical operation. They do differ, however, in their interpretation of the more recently promulgated rule in Pennsylvania that a consent is operative only if it is an “informed” or “knowledgeable” consent. Gray v. Grunnagle, 423 Pa. 144, 155, 223 A.2d 663 (1966).
In Gray v. Grunnagle, the Pennsylvania Supreme Court adopted the approach of jurisdictions that have tried to give substance to a patient’s right to decide for himself what surgical procedures he wishes to undergo. These jurisdictions consider an effective consent one which is made after the patient has been advised of the possible consequences and risks inherent in the particular operation, and therefore impose upon a physician the duty to disclose to his patient the possible adverse results of an operation.
Although it is not clearly articulated, a careful analysis of the rationale of the applicable citations, including Gray v. Grunnagle, indicates that before a patient will be deemed to give an informed consent, it may be necessary that he know the alternative methods of treatment available to him and the inherent dangers and possibilities of success of such alternatives. The philosophy behind such theory of informed consent is that the patient has the right and responsibility to determine whether he wants to risk the suggested corrective surgery. If a patient’s decision is to be a knowing and intelligent one, he must understand in addition to the risks of the suggested surgery, the possible results of the failure to chance it. A complete understanding of the consequences of foregoing the operation would seem necessarily to include a consideration of the alternative treatment for the patient’s disease or condition.
Some jurisdictions considering the duty of a physician to disclose to a patient the hazards of surgery have given the physician broad discretion by saying that a physician does not have to alarm a patient by explaining all such possibilities. Grunnagle, however, makes it clear that in Pennsylvania a consent is “informed” only if the patient knows what is apt to happen to him and the possible adverse results and dangers of the operation. The logical inference from this formulation may be that it is not the prerogative of the physician to keep secret and screen out any of the possible complications of surgery.
Gray v. Grunnagle was an action in trespass by a plaintiff alleging he suffered disability and damages as a result of surgery performed by the defendant physician without consent and in a negligent manner. The judge withdrew the issue of negligence and submitted the ease to the jury solely on the question of informed consent. The jury returned a verdict of $80,000.
The court en banc, however, granted the defendant’s motion for judgment n. o. v. On appeal the Pennsylvania Supreme Court reversed saying “whether or not plaintiff had consented to the operation or substantially the operation” was an issue for the jury. 423 Pa. at 166, 223 A.2d at 674. In a lengthy opinion, the Court set forth the reasons and criteria for an informed consent. It followed the rationale of informed consent in other jurisdictions which have expressed the view that there is a contractual relationship between patient and physician in which the physician must conform his behavior to the decision of the patient. The Court quoted with approval from Robert E. Powell’s article, Consent to Operative Procedures, 21 Md.L.Rev. 189, 191 (1961):
“ ‘In order to understand the nature of consent it is necessary at the outset to have some understanding of the legal relationship between the physician and his patient. This relationship is essentially contractual in nature. * * * More often than not the contract is raised by implication from the dealings between the parties, and in a like manner the acts to be performed by the parties are impliedly defined. * * jn short, the surgeon must operate in accordance with the agreement made between the parties. Consent for the operation or treatment arises from the contract and is given only in connection with what the parties understood was to be done * * * ’ ” 423 Pa. at 156-157, 223 A.2d 669.
The Pennsylvania Supreme Court indicated that a patient can make a decision only if he is told all of the consequences. Quoting again from the Powell article, the Court stated;
“ ‘* * * [I]t will be no defense for a surgeon to prove that the patient had given his consent, if the consent was not given with a true understanding of the nature of the operation to be performed, the seriousness of it, and organs of the body involved, the disease or incapacity sought to be cured, and the possible results.’ ” 423 Pa. at 166, 223 A.2d at 674:
Once the patient has the information, he is the one to decide which of the possible consequences he wants to risk. The wisdom and fairness of the rule requiring a physician to disclose the possible adverse effects of surgery were explained in a more recent article, Informed Consent in Medical Malpractice, 55 Cal.L.Rev. at 1409, as follows:
“Since the patient bears the entire risk of non-negligent injury and is concerned with his own interest as no other person can be, it is only fair to allow him to choose between accepting or rejecting the hazards of a proposed treatment even if his choice is irrational.”
In Grunnagle, the plaintiff testified that he understood the operation was to be an exploratory one and he would thereafter decide if he wished to undergo corrective surgery. The defendant physician testified that although he advised Mr. Gray that the operation was “serious”, he was not positive whether he explained the operation and its potential risks. 423 Pa. at 162, 223 A.2d 673. The Court said that the burden of proof was on the plaintiff to show that the operation was unauthorized, and that it was for a jury to decide whether under all the circumstances the plaintiff had sustained this burden and proved by a preponderance of the evidence that the consent was not informed.
The charge on informed consent in the present case conformed to the Pennsylvania rule set forth in Gray v. Grunnagle. Judge Nealon’s instructions indicated that a consent is valid only if it is “informed and knowledgeable”. He said the physicians should have advised the decedent of the consequences of the operation as well as the alternative possibilities. The charge thus accurately reflected Pennsylvania law and was fair to the plaintiff.
We are also satisfied that there was sufficient evidence on the question of consent to warrant the submission of this issue to the jury. Mrs. Sipling had suffered from an enlarged thyroid for some time. She was sent to the defendants, specialists in thyroid surgery, specifically for surgery and was admitted to the hospital for that purpose. The physicians testified that they told her the operation was serious. They did not, however, according to their testimony, inform her of the percentage risk of death. Although this omission can be a serious one, in the setting of this case it does not require us to hold as a matter of law that the defendants failed to discharge their burden of disclosure. In Grunnagle, the Court did not direct a verdict for the plaintiff although the record indicates that the defendant physician may have failed to inform the patient of a 10 to 15% risk that he would be worse after the operation; instead the Court said whether there was an informed consent was a question for the jury.
Plaintiff also urges the position that because Drs. Wright did not advise the decedent of the alternative methods of treatment for thyroid the consent was not informed. Dr. F. W. Wright testified that in his opinion “surgery was the only method applicable to [Mrs. Sip-ling’s] case.” From this testimony the jury could well infer that there was no alternative. Dr. Carl E. Ervin, qualified as a medical expert, testified that Mrs. Sipling “had only one alternative and that was surgery. * * * If she had not been operated on, she would have died with mathematical certainty * * *.” Disclosure of alternative treatment means disclosure of alternatives for the particular patient and not a recital of medical casebook theory. Mrs. Sipling had previously been treated with medication, and although the evidence is far from overwhelming it may properly be inferred that she was aware of this treatment and had found it unsatisfactory.
This brings us to plaintiff’s second point on this appeal — the charge to the jury on the question of emergency was erroneous and the record is devoid of evidence from which the jury could conclude that any emergency did, in fact, exist.
It is well established that consent is not required for surgery if an emergency exists and an immediate operation is needed to save the patient’s life. Plaintiff, however, contends that the trial judge did not properly define an emergency as “a sudden or unexpected event which creates a temporarily dangerous condition usually necessitating immediate or quick action” — a definition plaintiff takes from a case on an entirely different subject. Although the trial judge did not define emergency, he explained the general principle of the emergency exception and told the jury that they would have to conclude that an immediate operation was necessary to save Mrs. Sipling’s life or health, before this exception would be applicable.
The testimony in this case is meager on the existence of an emergency. Nonetheless, the trial judge was not required to rule as a matter of law that no emergency existed. This is particularly so in view of the affirmative reply by Dr. F. W. Wright to a question on cross-examination asking whether there was an emergency at the time he performed surgery. On direct examination, Dr. F. W. Wright had explained that on February 6th, he concluded that the medication was losing its effectiveness on Mrs. Sipling and that if he did not operate then he might never have the chance again.
Dr. F. M. Wright agreed with his father’s diagnosis that Mrs. Sipling was undergoing a change in response to medication. He also said it was his opinion that “if she hadn’t been operated on she would have died.” Dr. W. Emory Burnett, Professor of Surgery and Emeritus Chairman at Temple University Hospital, indicated after reviewing the medical charts that Mrs. Sipling “was getting into [the] state where the drugs [could] not control her and she [would] slip further back into the severity of her disease”. Dr. Burnett added, “it was the time to proceed now to interrupt this process by removal of an adequate amount of the thyroid gland.”
Accordingly, the order of the District Court denying plaintiff’s motions for judgment n. o. v. or a new trial will be affirmed.
. See e. g., Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); Moos v. United States, 225 F.2d 705 (8th Cir. 1955); Wall v. Brim, 138 F.2d 478, 481 (5th Cir. 1943); Bonner v. Moran, 75 U.S.App.D.C. 156, 126 F.2d 121, 122 (1941); Mohr v. Williams, 95 Minn. 261, 104 N.W. 12 (1905); McCoid, A Reappraisal of Liability for Unauthorized Medical Treatment, 41 Minn.L.Rev. 381 (1957); Anno. “Consent as a Condition of Right to Perform Surgical Operation.” 76 A.L.R. 562, 139 A.L.R. 1370. As Judge Cardozo stated in Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914): “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages”.
. Mohr v. Williams, 95 Minn. 261, 104 N. W. 12, 15 (1905).
. Dr. Carl E. Ervin testified that “euthyroid” is a medical term to describe a state in which the jjatient’s thyroid is brought as close as possible to a normal situation.
. In Pennsylvania, a surgeon who performs an unauthorized operation is charged with assault. Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 063 (1900); Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963); Dicenzo v. Berg, 340 Pa. 305, 307, 16 A.2d 15, 16 (1940); Moscicki v. Shor, 107 Pa.Super. 192, 195, 163 A. 341, 342 (1932). Here the plaintiffs framed their complaint in terms of negligence and the judge so charged the jury. Some jurisdictions consider an action against a physician who operates without an informed consent as one sounding in negligence. See e. g., Wilson v. Scott, 412 S.W.2d 299 (Texas 1967); Di Fillipo v. Preston. 53 Del. 539, 173 A.2d 333 (1961); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, rehearing denied, 187 Kan. 186, 354 P.2d 670 (1960); eases cited at 21 Southwest L. Rev. 843, 845 n. 22 (1967). In a case note on Di Fillipo v. Preston in 76 Harv.L.Rev. 1445, this position was considered “Justifiable, though not inevitable,” since the element of intent is obscure where the physician operates believing he has an effective consent, but it is later determined such consent was not “informed.” The treatment of such action as sounding in negligence is approved in an extensive law review article by Marcus L. Plante, infra note 6, discussing the major cases in the field.
. Gray v. Grunnagle is discussed in Informed Consent to Surgery — Substitution of Patient’s Subjective Understanding of Notice and Risks of Procedure for Objective Reasonable Man Test, 41 Dick.L.Rev. 675 (1967).
. E. g., Wilson v. Scott, 412 S.W.2d 299 (Texas, 1967) ; Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, rehearing denied, 187 Kan. 186, 354 P.2d 670 (1960); Salgo v. Leland Stanford Jr. University Board of Trustees, 154 Cal.App.2d 560, 317 P.2d 170 (1957); Bang v. Charles T. Miller Hospital, 251 Minn. 427, 88 N.W.2d 186 (1958). See also, Anno. “Malpractice: Physician’s Duty to Inform Patient of Nature and Hazards of Disease or Treatment,” 70 A.L.R.2d 1028 (1961). For a discussion of informed consent, see the following law review material: Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.L.Rev. 628 (1969); Campbell, Civil Liability For Investigational Drugs: Part I, 42 Temple L.Q. 99, 139-143 Part II, 42 Temple L.Q. 289, 297-307 (1969); Plante, An Analysis of “Informed Consent,” 36 Ford.L.Rev. 639 (1968); Comment, Informed Consent in Medical Malpractice, 55 Cal.L.Rev. 1396 (1967); Comment, 79 Harv.L.Rev. 1445 (1961); Powell, Consent to Operative Procedures, 21 Md.L.Rev. 189 (1961). Although the concept of an “informed” consent is a development of the last decade, it was foreshadowed in older eases which conceived of the relationship of a physician-patient as contractual. Such cases considered that the contract authorizing surgical procedure did not authorize operations “involving risks and results not contemplated.” Wall v. Brim, 138 F.2d at 481 (5th Cir. 1943).
. Russell v. Harwick, 166 So.2d 904 (Fla.App.1964) cert. discharged, 182 So.2d 241 (Fla.1966) and Bang v. Charles T. Miller Hospital, 251 Minn. 427, 88 N.W.2d 186 (1958) hint at a recognition of the duty of a physician to disclose to the patient the alternatives to surgery. These cases were cited by the Pennsylvania Supreme Court in Gray v. Grunnagle as indicating the relevance of explaining alternative treatment to a patient before obtaining consent.
. E. g., Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617, 621 (1964); Roberts v. Wood, 206 F.Supp. 579, 583 (S.D.Ala.1962). These cases are concerned with disclosures to patients where such would be harmful to the patients’ emotional state. Suggestions to avoid this problem have been made in law review comments. A patient could delegate his choice to the physician if he does not want to know the details of surgery. 55 Cal.L.Rev. at 1409. Disclosure could be made to a relative. 76 Harv.L.Rev. at 1448. These exceptional cases should not negate the physician’s duty to disclose information to the great majority of patients. A patient should not be prevented from making a choice to decline treatment even if others consider the choice wrong. 76 Harv.L.Rev. at 1448, 55 Cal.L.Rev. at 1410.
. A line of cases has developed which limit a physician’s duty of disclosure to the standards of the medical profession in the community. E. g., Wilson v. Scott, 412 S.W.2d 299 (1967); Di Fillipo v. Preston, 53 Del. 539, 173 A.2d 333, 339 (1961). In Gray v. Grunnagle, there was testimony that the accepted standard of medical care in the area was to advise patients of the particular risks of the surgical procedure Mr. Gray was to undergo. 423 Pa. at 163, 223 A.2d at 672. In the present case, there is no testimony as to the community standard of disclosure; but neither party objects to this omission.
. The Court in Grunnagle did not indicate what weight if any should be given to the signed hospital release form.
. Fairness impels us to note the following testimony given by Dr. F. W. Wright which was damaging to defendants’ case (N.T. 262):
“Q. Did you tell them that death was a possibility?
A. I do not accept death as a possibility when I don’t think it’s going to happen.
Q. But death is one of the hazards when you operate on a very toxic patient, is it not, Doctor?
A. Well, if you consider one percent a hazard, I would say yes it is, but when you don’t have any more than that you don’t usually tell them they’re going to die.”
. E. g., Barnett v. Bachrach, 34 A.2d 626 (Mun.Ct.D.C.1943), and cases cited at note 1 supra. In Gravis v. Physicians and Surgeons Hospital of Alice, 427 S.W.2d 310 (Texas, 1968), cited by plaintiff, and Rolater v. Strain, 39 Okl. 572, 137 P. 96 (1913) the respective courts ruled that whether an emergency existed was a question for the jury.
. Scaccia v. Old Forge Borough, 373 Pa. 161, 94 A.2d 563 (1953). Plaintiff’s points for charge did not specifically request this definition of emergency.
. “Q. There was no immediate emergency that required an operation on February 6th, 1964, was there, Doctor?
A. Yes, I just explained that, Mr. Markowitz. Her drugs had seemed to have lost their effectiveness, and if she is not operated on at that point, you delay this more and more and more, and you’re very apt to have a patient that you never will be able to operate on.” (N.T. 244).
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_respond2_8_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 second 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.
PORTER v. BENNISON et al.
No. 3999.
United States Court of Appeals Tenth Circuit.
March 6, 1950.
I. H. Spears, Detroit, Mich. (Thomas Campbell, Denver, Colo, on the brief) for appellant.
S. M. True, Denver, Colo. (G. E. Hendricks, Julesburg, Colo. on the brief) for appellees.
Before PHILLIPS, Chief Judge, and BRATTON ■ and PICKETT, Circuit Judges.
BRATTON, Circuit Judge.
This appeal is from the judgment of the United States Court for Colorado dismissing for want of jurisdiction an action instituted by Hereford B. Porter against Warren R. Bennison, Margarette Bennison, Lennette E. Bennison, G. W. Hendricks, individually and as administrator of the estate of George W. Mattingly, deceased, and First Trust Company of Lincoln, Nebraska.
It was alleged in the amended complaint that plaintiff was a citizen of Michigan; ihat defendants were citizens of Nebraska and Colorado; and that the amount in controversy was in excess of $3,000, exclusive of interests and costs. It was further alleged that George W. Mattingly, a Negro, died in 1924, leaving Jeannette Miller Breckenridge as his sole heir; that Jeannette Miller Breckenridge died in 1934, leaving plaintiff as her sole heir and beneficiary of the estate of Mattingly; that nineteen days prior to the death of Mattingly, and at a time when he was unconscious and sick unto death, Charles W. Bennison and I. T. McCaskey, white men, prepared and took to his room a paper purporting to be a will; that they took his hand and placed a mark on the paper as his signature; that under the terms of the will, the entire estate of Mattingly was devised and bequeathed to Bennison and McCaskey; that the will was fraudulently presented to the probate court of Butler County, Nebraska, for probate; that its admission to probate was brought about by false and fraudulent testimony; and that Charles C. Croswaithe was appointed administrator of the estate with the will annexed. It was further alleged that at the time of his death, the decedent owned certain lands in Sedgwick County, Colorado; that a certified copy of the will and the probate proceedings in Nebraska were filed in the county court of Sedgwick County, Colorado; that George W. Hendricks was appointed administrator of the estate in that state; that Croswaithe and Hendricks, with notice of the fraud inhering in the execution of the purported will and in the probate proceedings, took possession of money and property belonging to the estate and appropriated large amounts thereof to their own use and benefit; that the First Trust Company acted under the will with notice of the fraud; and that the rights asserted by the other defendants were acquired with notice of the fraud or with sufficient information to put the parties on notice thereof. It was further alleged that Jeannette Miller Breckenridge was not served with process in connection with the probate proceedings and did not have any notice thereof; and that plaintiff did not discover the fraud until less than three years prior to the institution of the action. And it was further alleged that the defendants, acting under color of state law, had deprived plaintiff of his property in violation of the Constitution of the United States and of certain federal statutes; and that the action was one arising under the Constitution and laws of the United States. The prayer was for judgment declaring defendants to be constructive trustees ex maleficio for the benefit of plaintiff; directing conveyance of the described lands to plaintiff; quieting title in plaintiff; an accounting; or in the alternative; damages.
It is contended that under Title 28, section 1331 of the United States Code Annotated, the court had jurisdiction of the action. The statute provides that the district courts shall have original jurisdiction of all civil actions arising under the Constitution or laws of the United States, and having more than $3,000 involved, exclusive of interest and costs. But not every question of federal law lurking in the background or emerging necessarily places the suit in the class of one arising under the Constitution or laws of the United States, within the meaning of the statute. A suit having for its purpose the enforcement of a right which finds its origin in the Constitution or laws of the United States is not necessarily and for that reason alone one arising under such laws. In order for a suit to be one arising under the Constitution or laws of the United States, it must really and substantially involve a dispute or controversy in respect of the construction or effect of a provision in the Constitution or the validity, construction, or effect of an Act of Congress, upon the determination of which the result depends. A right or immunity created by the Constitution or laws of the United States must be an essential element of plaintiff’s cause of action, and the right or immunity must be such that it will be supported if one construction or effect is given to the Constitution or laws of the United States and will be defeated if another construction or effect is given. And a genuine present controversy of that kind must be disclosed upon the face of the complaint. Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205; Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Regents of New Mexico College of Agriculture & Mechanic Arts v. Albuquerque Broadcasting Co., 10 Cir., 158 F.2d 900; Andersen v. Bingham & Garfield Railway Co., 10 Cir., 169 F.2d 328. Laying aside the allegations contained in the amended complaint which were mere conclusions of law, it is manifest that the pleading did not allege a cause of action arising under the Constitution or laws of the United States.
The further contention is that under Title 28, section 1332, of the United States Code Annotated the court was vested with jurisdiction of the action. The statute provides that the district courts shall have original jurisdiction of actions in which the amount in controversy exceeds $3,000, exclusive of interest and costs, and is between citizens of different states. Strong reliance is placed upon the case of Gaines v. Chew, 2 How. 619, 11 L.Ed. 402, to sustain the contention. There, the bill in equity filed in the United States Court for Louisiana alleged that the decedent executed two wills; that the later will was fraudulently suppressed or destroyed; that the earlier one was fraudulently tendered for probate and admitted to probate; and that the defendants, some of whom were executors under the earlier will and others were purchasers of property belonging to the estate, knew of the fraud. The prayer was revocation of the first will, effectiveness given to the second will, discovery, and an accounting. The court held that the later will would have to be established and admitted to probate before any rights could be asserted under it; that in Louisiana the court of probate had exclusive jurisdiction in the proof of wills; that in cases of fraud, equity has concurrent jurisdiction with a court of law, but in regard to a will charged to have been obtained through fraud, that rule does not obtain; and that the United States Court did not have jurisdiction in equity to carry the spoliated will into effect. However, the bill was upheld as a bill of discovery to assist complainants in their proofs before the probate court; and the court intimated that in the event the probate court should decline to exercise jurisdiction, and there shoffld not be any remedy in the higher courts of the state, the United States Court in the exercise of its equity jurisdiction might have inherent power to afford a remedy where the right was clear, by giving effect to the later will. But the court did not go further in that case. The case of In re Broderick’s Will, 21 Wall. 503, 22 L.Ed. 599, is indistinguishably similar to this one. That was an action in equity instituted in the United States Court for California by the alleged heirs at law of the decedent to have a purported will declared a forgery, to set aside the probate of the will and all subsequent proceedings had in the probate court, to have those deraigning title to property under the will charged as trustees for complainants, to compel conveyance to complainants of property belonging to the estate, and for general relief. The court said that the probate courts in California were vested with exclusive jurisdiction to probate wills, issue letters testamentary and of administration, and entertain all cognate matters ■ usually incident to that branch of judicature; that every objection to the will or the probate thereof pleaded in the bill could have been raised in the probate court; and that the relief sought by declaring the purchasers trustees for the benefit of complainants would have been fully compassed by denying probate of the will. There was diversity of citizenship and the amount in controversy exceeded that which was requisite for jurisdiction, but it was held that the bill failed to state ■ a cause of action for equitable interference with the probate of the will or for establishing a trust as against the purchasers from the estate for the benefit of complainants. And Sutton v. English, 246 U.S. 199, 38 S.Ct. 254, 62 L.Ed. 664, is equally apposite. There all of the heirs at law of Moses Hubbard and Mary Jane Hubbard, deceased, except Cora D. Spencer, filed in the United States Court for Texas their bill in equity. Cora D. Spencer was joined as a party defendant. The bill set up diversity of citizenship and the fact that the 'amount in controversy exceeded that which was requisite for jurisdiction. The objects of the action were to treat the joint will of Moses Hubbard and Mary Jane Hubbard as inefficacious to dispose of their community property; to set aside a judgment said to have been obtained in the district court of the state by English and others, devisees under the will, establishing their title to the community property as against Mary Jane Hubbard; to have the will of Mary Jane Hubbard, at least to the extent that a certain paragraph thereof gave and bequeathed the residue of her property to Cora D. Spencer, decreed not to be a testamentary disposition of that portion of the estate of the testatrix which had been community property; and to have the property constituting the separate estate of Mary Jane Hubbard and not having been effectively devised by her, be decreed to have passed to complainants as her heirs at law. It was held that the county courts in Texas had the general jurisdiction of probate courts, with power to probate wills, grant letters testamentary or of administration, and settle accounts of executors and administrators; that the county courts had exclusive original jurisdiction to entertain proceedings seasonably instituted to contest the validity of wills; that an essential feature of the cause of action stated in the bill was to annul the will of Mary Jane Hubbard, which under the laws of Texas was merely supplemental to the proceedings for the probate of her will and was cognizable only in the county court; and that therefore the cause of action pleaded in the bill was not within the jurisdiction of the courts of the United States.
As we understand the law of Nebraska, the county courts in that state are clothed with exclusive original jurisdiction in all matters relating to the probate of wills, including the vacating of an order admitting a will to probate for fraud, or on other grounds. It is our further understanding that the district courts of that state, under their general grant of equity jurisdiction, do not have original jurisdiction to entertain in the first instance a proceeding in equity to declare a purported will to be a forgery, to vacate the probate of such a will, and to charge those deraigning title under a will of that kind trustees ex maleficio for the benefit of complainants. Sovereign Camp of Woodmen of the World v. Grandon, 64 Neb. 39, 89 N.W. 448; Brown v. Webster, 87 Neb. 788, 128 N.W. 635; In re Shierman’s Estate, 129 Neb. 230, 261 N.W. 155. And we understand the law of Colorado to be substantially the same in effect. Glenn v. Mitchell, 71 Colo. 394, 207 P. 84. The county court of Butler County, Nebraska, being clothed with exclusive original jurisdiction to entertain a proceeding to declare the will of Mattingly invalid for fraud, and to vacate the order admitting it to probate; and the county court of Sedgwick County, Colorado, being clothed with like exclusive original jurisdiction to vacate its order appointing an administrator in that state, the United States Court for Colorado, in the exercise of its general grant of jurisdiction based upon diversity of citizenship and the requisite amount in controversy, did not have jurisdiction to entertain the suit in equity pleaded in the amended complaint. In re Broderick’s Will, supra; Sutton v. English, supra.
The judgment is affirmed.
Question: This question concerns the second 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:
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sc_respondent
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177
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
CALIFORNIA DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT et al. v. JAVA et al.
No. 507.
Argued February 24, 1971 —
Decided April 26, 1971
Burger, C. J., delivered the opinion for a unanimous Court. Douglas, J., filed a concurring opinion, post, p. 135.
Asher Rubin, Deputy Attorney General of California, argued the cause for appellants. With him on the brief was Thomas C. Lynch, Attorney General.
Stephen P. Berzon argued the cause for appellees pro hac vice. With him on the brief was Kenneth F. Phillips.
Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Gray, Robert V. Zener, and Peter G. Nash for the United States; by Duke W. Dunbar, Attorney General, John P. Moore, Deputy Attorney General, and Robert L. Harris, Assistant Attorney General, for the State of Colorado; by Robert M. Robson, Attorney General, and R. LaVar Marsh, Assistant Attorney General, for the State of Idaho; by Francis B. Burch, Attorney General, and Louis B. Price, Special Assistant Attorney General, for the State of Maryland, joined by the State of Illinois; by Warren B. Rudman, Attorney General, and William F. Gann, Deputy Attorney General, for the State of New Hampshire, joined by David M. Pack, Attorney General, and Lance D. Evans, Assistant Attorney General, for the State of Tennessee; by Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Brenda Soloff, Assistant Attorney General, for the State of New York; by Paul W. Brown, Attorney General, and Franklin R. Wright, Assistant Attorney General, for the State of Ohio; and by Willard Z. Carr, Jr., for the Southern California Edison Co. et al.
Briefs of amici curiae urging affirmance were filed by C. Lyonel Jones, Ed J. Polk, Don B. Kates, Jr., and Joseph A. Matera for California Rural Legal Assistance et al.; by J. Albert Woll, Laurence Gold, and Thomas E. Harris for American Federation of Labor and Congress of Industrial Organizations; by Stephen I. Schlossberg, John A. Fillion, and Jordan Rossen for the International Union, UAW; and by the Employment Project, Center on Social Welfare Policy and Law.
Mr. Chief Justice Burger
delivered the opinion of the Court.
This case raises the issue of whether a State may, consistent with § 303 (a)(1) of the Social Security Act, suspend or withhold unemployment compensation benefits from a claimant, when an employer takes an appeal from an initial determination of eligibility. Section 303 (a)(1) of the Social Security Act, 49 Stat. 626, as amended, 42 U. S. C. § 503 (a)(1), provides that benefits must be paid “when due.”
In late summer 1969, appellees Judith Java and Carroll Hudson, having been discharged from employment, applied for unemployment insurance benefits under the California Unemployment Insurance Program. Appel-lees were given an eligibility interview at which the employer did not appear, although such an appearance was permitted. As a result of that interview both employees were ruled eligible for benefits. Payments began immediately. In each case the former employer filed an appeal after learning of the grant of benefits, contending that benefits should be denied because the claimants were discharged for cause. In accordance with the practice of the agency and pursuant to § 1335 of the California Unemployment Insurance Code payments automatically stopped. At the subsequent hearings before an Appeals Board Referee, which stage is essentially an appeal from the preliminary determination under California Unemployment Insurance Code §§ 1328, 1334, appellee Hudson’s eligibility was affirmed, but appellee Java was ruled ineligible and the initial determination was reversed.
Prior to the hearings before the Referee, appellees commenced a class action in the United States District Court on behalf of themselves and other claimants similarly situated. They sought a declaration that § 1335 of the California Unemployment Insurance Code is unconstitutional and inconsistent with the requirements of §303 (a)(1) of the Social Security Act, and an order enjoining the operation of § 1335.
A three-judge court was convened, and it concluded that § 1335 is defective on both constitutional and statutory grounds. The District Court held that by not providing for a pretermination hearing, the California procedure constitutes a denial of procedural due process, relying on Goldberg v. Kelly, 397 U. S. 254 (1970). It further held that the application of § 1335, so as to result in a median seven-week delay in payments to claimants who have been found eligible for benefits, constituted a failure to pay unemployment compensation “when due” within the meaning of § 303 (a) (1) of the Social Security Act. The court granted appellees’ motion for a preliminary injunction, ordering the State of California not to suspend unemployment benefits pursuant to § 1335 because an eligibility determination has been appealed.
(1)
We agree with the conclusion of the District Court that § 1335 of the California Unemployment Insurance Code conflicts with the requirements of § 303 (a)(1) of the Social Security Act. This holding makes it unnecessary to reach the constitutional issue involved in Goldberg v. Kelly, supra, on which the District Court relied.
(2)
The importance of this case to workers is obvious. Because an understanding and the resolution of the basic issue depends on familiarity with a series of detailed procedures, we set out fully the administrative scheme.
All federal-state cooperative unemployment insurance programs are financed in part by grants from the United States pursuant to the Social Security Act, 42 U. S. C. §§ 501-503. No grant may be made to a State for a fiscal year unless the Secretary of Labor certifies the amount to be paid, 42 U. S. C. § 502 (a). The Secretary of Labor may not certify payment of federal funds unless he first finds that the State’s program conforms to federal requirements. In particular, §303 (a)(1) of the Act requires that state methods of administration be found “to be reasonably calculated to insure full payment of unemployment compensation when due.”
The California Unemployment Insurance Compensation Program, certified by the Secretary of Labor under § 303 of the Act, provides for payment of insurance benefits, over an extended period of time, to persons who find themselves unemployed through no fault of their own. Cal. Unemp. Ins. Code § 1251 et seq. In order to be eligible for benefits a claimant is required to have earned a specified amount of wages during his base period. Id., §1281. Benefits are paid from the State Unemployment Fund, which consists of funds collected from private employers, id., § 976 et seq., and money credited to the State’s account in the federal Unemployment Trust Fund pursuant to 42 U. S. C. §§ 501-503, 1101-1105. The amount of money an employer is required to pay into the State Fund is based on benefits paid to terminated employees which are charged to its reserve account and disbursements from the State Unemployment Fund. Cal. Unemp. Ins. Code §§ 1025-1032, 976-978.
A claimant, appearing at an unemployment insurance office to assert a claim initially is asked to fill out forms which, taken together, indicate the basis of the claim, the name of the claimant’s previous employer, the reason for his unemployment, his work experience, etc. The claimant is asked to return to the office three weeks later for the purpose of receiving an Eligibility Benefits Rights Interview. The issue most frequently disputed, the claimant’s reason for termination of employment, is answered on Form DE 1101, and the Department immediately sends copies of this form to the affected employer for verification. Meanwhile the employer is asked to furnish, within 10 days, “any facts then known which may affect the claimant’s eligibility for benefits.” Cal. Unemp. Ins. Code §§ 1327, 1030. If the employer challenges eligibility, the claimant may then be asked to complete Form DE 4935, which asks for detailed information about the termination of claimant’s previous job. The interviewer has, according to the Local Office Manual (L. O. M.) used in California, the “responsibility to seek from any source the facts required to make a prompt and proper determination of eligibility.” L. O. M. § 1400.3 (2). “Whenever information submitted is not clearly adequate to substantiate a decision, the Department has an obligation to seek the necessary information.” L. O. M. § 1400.5 (1)(a). This clearly contemplates inquiry to the latest employer, among others.
The claimant then appears for his interview. At the interview, the eligibility interviewer reviews available documents, makes certain that required forms have been completed, and clarifies or verifies any questionable statements. If there are inconsistent facts or questions as to eligibility, the claimant is asked to explain and offer his version of the facts. The interviewer is instructed to make telephone contact with other parties, including the latest employer, at the time of the interview, if possible. L. O. M. § 1404.4 (20). Interested persons, including the employer, are allowed to confirm, contradict, explain, or present any relevant evidence. L. O. M. § 1404.4 (21).
The eligibility interviewer must then consider all the evidence and make a determination as to eligibility. Normally, the determination is made at the conclusion of the interview. L. O. M. § 1404.6 (2). However, if necessary to obtain information by mail from any source, the determination may be placed in suspense for 10 days after the date of interview, or, if no response is received, no later than claimant’s next report day. L. O. M. § 1400.3 (2) (a).
From the foregoing it can be seen that the interview for the determination of eligibility is the critical point in the California procedure. In the Department’s own terms, it is “the point at which any issue affecting the claimant’s eligibility is decided and fulfills the Department’s legal obligation to insure that... [b]enefits are paid promptly if claimant is eligible.” L. O. M. § 1400.1 (1) (emphasis added). If the initial determination is favorable to the claimant, payments begin immediately, and for 95-98% of the claims, former employers do not appear or seek a hearing; no further problem arises as to initial eligibility. The Department sends out a notice to the employer informing him that the claimant has been found eligible, and that the employer may appeal within 10 days. Cal. Unemp. Ins. Code § 1328. The 10-day period may be extended for “good cause.” Ibid.
If the employer appeals, payment of the claimant's benefits is stopped pending determination on appeal before an Appeals Board Referee. Id., § 1335; see L. O. M. § 1474. The automatic suspension of benefits upon the employer’s appeal, after an initial determination of eligibility, is the aspect of the California procedure challenged here. By that time the claimant may have received one or perhaps two payments. When the employer appeals, a hearing is then scheduled at which both the parties may appear and be represented, call witnesses, and present evidence. “A referee after affording a reasonable opportunity for fair hearing, shall, unless such appeal is withdrawn, affirm, reverse, or modify any determination which is appealed....” Cal. Unemp. Ins. Code § 1334. The appeal affords a de novo consideration. Generally, processing of the employer’s appeal takes between six and seven weeks, between the date of fifing the appeal and the date of mailing the decision or dismissal.
If upon appeal the Referee finds the claimant eligible, payments are reinstated at once and continue even if the employer exercises his right to appeal further to the Appeals Board. Cal. Unemp. Ins. Code § 1335 (b). Meanwhile as much as seven to 10 weeks may have elapsed. The record indicates that employers are successful in less than 50% of their appeals from initial determinations of eligibility. The Referee’s decision is final unless within 10 days further appeal is initiated to the Appeals Board. Cal. Unemp. Ins. Code §§ 1334, 1336. The Appeals Board must render a decision within 60 days after the filing of an appeal to it, unless it requires the taking of further evidence. Id., § 1337. If the claimant is successful on appeal, he receives a lump sum payment for weeks of unemployment prior to the Referee’s decision. Id., § 1338. If the employer is successful on appeal, his reserve account is immediately credited with all monies that have been paid his former employee. He has no responsibility for recoupment. Id., §§ 1335, 1380.
(3)
The dispositive issue is the determination of whether § 1335 of the California Unemployment Insurance Code violates the command of 42 U. S. C. § 503 (a)(1) that state unemployment compensation programs must “be reasonably calculated to insure full payment of unemployment compensation when due.” The purpose of the federal statutory scheme must be examined in order to reconcile the apparent conflict between the provision of the California statute and § 303 (a)(1) of the Social Security Act.
It is true, as appellants argue, that the unemployment compensation insurance program was not based on need in the sense underlying the various welfare programs that had their genesis in the same period of economic stress a generation ago. A kind of “need” is present in the statutory scheme for insurance, however, to the extent that any “salary replacement” insurance fulfills a need caused by lost employment. The objective of Congress was to provide a substitute for wages lost during a period of unemployment not the fault of the employee. Probably no program could be devised to make insurance payments available precisely on the nearest payday following the termination, but to the extent that this was administratively feasible this must be regarded as what Congress was trying to accomplish. The circumstances surrounding the enactment of the statute confirm this.
The Social Security Act received its impetus from the Report of the Committee on Economic Security, which was established by executive order of President Franklin D. Roosevelt to study the whole problem of financial insecurity due to unemployment, old age, disability, and health. In its report, transmitted to Congress by the President on January 17, 1935, the Committee recommended a program of unemployment insurance compensation as a “first line of defense for... [a worker] ordinarily steadily employed... for a limited period during which there is expectation that he will soon be reemployed. This should be a contractual right not dependent on any means test.... It will carry workers over most, if not all, periods of unemployment in normal times without resort to any other form of assistance.” Estimates of possible amounts and duration of unemployment benefits were made by the actuarial staff of the Committee. On the basis of 1922-1933 statistics, it was estimated that 12 weeks of benefits could be paid with a two-week waiting period at a 4% employer contribution rate. The longest waiting period entering into the estimates was four weeks, indicating an intent that payments should begin promptly after the expiration of a short waiting period.
Other evidence in the legislative history of the Act and the commentary upon it supports the conclusion that “when due” was intended to mean at the earliest stage of unemployment that such payments were administratively feasible after giving both the worker and the employer an opportunity to be heard. The purpose of the Act was to give prompt if only partial replacement of wages to the unemployed, to enable workers “to tide themselves over, until they get back to their old work or find other employment, without having to resort to relief.” Unemployment benefits provide cash to a newly unemployed worker “at a time when otherwise he would have nothing to spend,” serving to maintain the recipient at subsistence levels without the necessity of his turning to welfare or private charity. Further, providing for “security during the period following unemployment” was thought to be a means of assisting a worker to find substantially equivalent employment. The Federal Relief Administrator testified that the Act “covers a great many thousands of people who are thrown out of work suddenly. It is essential that they be permitted to look for a job. They should not be doing anything else but looking for a job.” Finally, Congress viewed unemployment insurance payments as a means of exerting an influence upon the stabilization of industry. “Their only distinguishing feature is that they will be specially earmarked for the use of the unemployed at the very times when it is best for business that they should be so used.” Early payment of insurance benefits serves to prevent a decline in the purchasing power of the unemployed, which in turn serves to aid industries producing goods and services. The following extract from the testimony of the Secretary of Labor, in support of the Act, describes the stabilization mechanism contemplated:
“I think that the importance of providing purchasing power for these people, even though temporary, is of very great significance in the beginning of a depression. I really believe that putting purchasing power in the form of unemployment-insurance benefits in the hands of the people at the moment when the depression begins and when the first groups begin to be laid off is bound to have a beneficial effect. Not only will you stabilize their purchases, but through stabilization of their purchases you will keep other industries from going downward, and immediately you spread work by that very device.”
We conclude that the word “due” in § 303 (a)(1), when construed in light of the purposes of the Act, means the time when payments are first administratively allowed as a result of a hearing of which both parties have notice and are permitted to present their respective positions; any other construction would fail to meet the objective of early substitute compensation during unemployment. Paying compensation to an unemployed worker promptly after an initial determination of eligibility accomplishes the congressional purposes of avoiding resort to welfare and stabilizing consumer demands; delaying compensation until months have elapsed defeats these purposes. It seems clear therefore that the California procedure, which suspends payments for a median period of seven weeks pending appeal, after an initial determination of eligibility has been made, is not “reasonably calculated to insure full payment of unemployment compensation when due.”
(4)
We are not persuaded by appellants’ suggestion that the initial determination is clouded with sufficient uncertainty as to warrant withholding benefits until the appeal is decided to protect the interests of the State or of employers. The California procedure for initial determinations is effective in insuring that benefits are limited to legally eligible claimants. From 95%-98% of ineligible claimants are screened out at this stage. The primary inquiry at the preliminary interview is to examine the claimant’s basic eligibility under the California statute. It is an occasion when the claims of both the employer and the employee can be heard, however. The regulations contemplate that the interviewer shall make inquiries of the employer informally. This may not always flush out objections based on discharge for cause, as this case illustrates. Nonetheless, if the employer has notice of the time and place of the preliminary interview, as was the case here, it is his responsibility to present sufficient data to make clear his objections to the claim for benefits and put the interviewer in a position to broaden the inquiry if necessary. Any procedure or regulation that fails to give notice to the employer would, of course, be violative of the statutory scheme as we construe it.
Although the eligibility interview is informal and does not contemplate taking evidence in the traditional judicial sense, it has adversary characteristics and the minimum obligation of an employer is to inform the interviewer and the claimant of any disqualifying factors. So informed, the interviewer can direct the initial inquiry to identifying a frivolous or dilatory contention by either party.
It would frustrate one of the Act’s basic purposes— providing a “substitute” for wages — to permit an employer to ignore the initial interview or fail to assert and document a claimed defense, and then effectuate cessation of payments by asserting a defense to the claim by way of appeal. If the employer fails to present any evidence, he has in effect defaulted, and neither he nor the State can with justification complain if, on a prima jade showing, benefits are allowed. If the employer’s defenses are not accepted and the claim is allowed, that also constitutes a determination that the benefits are “due.”
As we have noted, this construction of the statutory scheme vindicates the congressional objective; California’s approach tends to frustrate it. Our reading of the statute imposes no hardship on either the State or the employer and gives effect to the congressional objective of getting money into the pocket of the unemployed worker at the earliest point that is administratively feasible. That is what the Unemployment Insurance program was all about.
For the reasons stated enforcement of § 1335- must be enjoined because it is inconsistent with § 303 (a)(1) of the Social Security Act. See King v. Smith, 392 U. S. 309, 333 (1968); Rosado v. Wyman, 397 U. S. 397, 420-421 (1970).
Affirmed.
Section 1335 of the California Unemployment Insurance Code provides:
“If an appeal is filed, benefits with respect to the period prior to the final decision on the appeal shall be paid only after such decision, except that:
“(a) If benefits for any week are payable in accordance with a determination by the department irrespective of any decision on the issues set forth in the appeal, such benefits shall be promptly paid regardless of such appeal, or
“(b) If a referee affirms a determination allowing benefits, such benefits shall be paid regardless of any appeal which may thereafter be taken, and regardless of any action taken under Section 1336 or otherwise by the director, Appeals Board, or other administrative body or by any court.
“If such determination is finally reversed, no employer’s account shall be charged with benefits paid because of that determination.” (Emphasis added.)
Section 303 (a)(1) of the Social Security Act, 42 U. S. C. § 503 (a) (1), provides in part:
“(a) The Secretary of Labor shall make no certification for payment to any State unless he finds that the law of such State, approved by the Secretary of Labor under the Federal Unemployment Tax Act, includes provision for—
“(1) Such methods of administration (including after January 1, 1940, methods relating to the establishment and maintenance of personnel standards on a merit basis, except that the Secretary of Labor shall exercise no authority with respect to the selection, tenure of office, and compensation of any individual employed in accordance with such methods) as are found by the Secretary of Labor to be reasonably calculated to insure full -payment of unemployment compensation when due.” (Emphasis added.)
Of the 226,066 claimants ruled ineligible in 1968, only 2,602 (1%) were found ineligible by a state referee upon an employer’s appeal.
Of 667,993 determinations on eligibility in 1968, 441,927 were favorable to the claimant.
In 1968 there were only 5,526 decisions on appeals filed by employers.
In 1968 the period was 49 days; in 1969 it was 40.5 days.
Of 4,159 appeals filed by an employer between January 1, 1969, and September 30, 1969, 2,023 resulted in decisions favorable to the employer. (During the same period there were
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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sc_certreason
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J
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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.
UNITED STATES v. SEEGER.
No. 50.
Argued November 16-17, 1964.
Decided March 8, 1965.
Solicitor General Cox argued the cause for the United States in all cases. Assistant Attorney General Miller was with him on the briefs in all cases. Ralph S. Spritzer was with him on the briefs in Nos. 50 and 51, and Marshall Tamor Golding was with him on the briefs in No. 50.
Duane B. Beeson argued the cause and filed a brief for petitioner in No. 29.
Kenneth W. Greenawalt argued the cause and filed a brief for respondent in No. 50.
Herman Adlerstein argued the cause and filed a brief for respondent in No. 51.
Briefs of amici curiae, urging affirmance in Nos. 50 and 51 and reversal in No. 29, were filed by Alfred Lawrence Toombs and Melvin L. Wulf for the American Civil Liberties Union, and by Leo Pfejfer, Shad Polier, Will Mas-low and Joseph B. Robison for the American Jewish Congress. Briefs of amici curiae, urging affirmance in No. 50, were filed by Herbert A. Wolff, Leo Rosen, Nanette Dembitz and Nancy F. Wechsler for the American Ethical Union, and by Tolbert H. McCarroll, Lester Forest and Paul Blanshard for the American Humanist Association.
Together with No. 51, United States v. Jakobson, on certiorari to the same court, and No. 29, Peter v. United States, on certiorari to the United States Court of Appeals for the Ninth Circuit.
Mr. Justice Clark
delivered the opinion of the Court.
These cases involve claims of conscientious objectors under § 6 (j) of the Universal Military Training and Service Act, 50 U. S. C. App. § 456 (j) (1958 ed.), which exempts from combatant training and service in the armed forces of the United States those persons who by reason of their religious training and belief are conscientiously opposed to participation in war in any form. The cases were consolidated for argument and we consider them together although each involves different facts and circumstances. The parties raise the basic question of the constitutionality of the section which defines the term “religious training and belief/’ as used in the Act, as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code.” The constitutional attack is launched under the First Amendment’s Establishment and Free Exercise Clauses and is twofold: (1) The section does not exempt nonreligious conscientious objectors; and (2) it discriminates between different forms of religious expression in violation of the Due Process Clause of the Fifth Amendment. Jakobson (No. 51) and Peter (No. 29) also claim that their beliefs come within the meaning of the section. Jakobson claims that he meets the standards of § 6 (j) because his opposition to war is based on belief in a Supreme Reality and is therefore an obligation superior to one resulting from man’s relationship to his fellowman. Peter contends that his opposition to war derives from his acceptance of the existence of a universal power beyond that of man and that this acceptance in fact constitutes belief in a Supreme Being, qualifying him for exemption. We granted certiorari in each of the cases because of their importance in the administration of the Act. 377 U. S. 922.
We have concluded that Congress, in using the expression “Supreme Being” rather than the designation “God,” was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views. We believe that under this construction, the test of belief “in a relation to a Supreme Being” is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is “in a relation to a Supreme Being” and the other is not. We have concluded that the beliefs of the objectors in these cases meet these criteria, and, accordingly, we affirm the judgments in Nos. 50 and 51 and reverse the judgment in No. 29.
The Facts in the Cases.
No. 50: Seeger was convicted in the District Court for the Southern District of New York of having refused to submit to induction in the armed forces. He was originally classified 1-A in 1953 by his local board, but this classification was changed in 1955 to 2-S (student) and he remained in this status until 1958 when he was reclassified 1-A. He first claimed exemption as a conscientious objector in 1957 after successive annual renewals of his student classification. Although he did not adopt verbatim the printed Selective Service System form, he declared that he was conscientiously opposed to participation in war in any form by reason of his “religious” belief; that he preferred to leave the question as to his belief in a Supreme Being open, “rather than answer ‘yes’ or ‘no’ ”; that his “skepticism or disbelief in the existence of God” did “not necessarily mean lack of faith in anything whatsoever”; that his was a “belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed.” R. 69-70,73. He cited such personages as Plato, Aristotle and Spinoza for support of his ethical belief in intellectual and moral integrity “without belief in God, except in the remotest sense.” R. 73. His belief was found to be sincere, honest, and made in good faith; and his conscientious objection to be based upon individual training and belief, both of which included research in religious and cultural fields. Seeger’s claim, however, was denied solely because it was not based upon a “belief in a relation to a Supreme Being” as required by § 6 (j) of the Act. At trial Seeger’s counsel admitted that Seeger’s belief was not in relation to a Supreme Being as commonly understood, but contended that he was entitled to the exemption because “under the present law Mr. Seeger’s position would also include definitions of religion which have been stated more recently,” R. 49, and could be “accommodated” under the definition of religious training and belief in the Act, R. 53. He was convicted and the Court of Appeals reversed, holding that the Supreme Being requirement of the section distinguished “between internally derived and externally compelled beliefs” and was, therefore, an “impermissible classification” under the Due Process Clause of the Fifth Amendment. 326 F. 2d 846.
No. 51: Jakobson was also convicted in the Southern District of New York on a charge of refusing to submit to induction. On his appeal the Court of Appeals reversed on the ground that rejection of his claim may have rested on the factual finding, erroneously made, that he did not believe in a Supreme Being as required by § 6 (j). 325 F. 2d 409.
Jakobson was originally classified 1-A in 1953 and intermittently enjoyed a student classification until 1956. It was not until April 1958 that he made claim to noncombatant classification (1-A-O) as a conscientious objector. He stated on the Selective Service System form that he believed in a “Supreme Being” who was “Creator of Man” in the sense of being “ultimately responsible for the existence of” man and who was “the Supreme Reality” of which “the existence of man is the resultR. 44. (Emphasis in the original.) He explained that his religious and social thinking had developed after much meditation and thought. He had concluded that man must be “partly spiritual” and, therefore, “partly akin to the Supreme Reality”; and that his “most important religious law” was that “no man ought ever to wilfully sacrifice another man’s life as a means to any other end....” R. 45-46. In December 1958 he requested a 1-0 classification since he felt that participation in any form of military service would involve him in “too many situations and relationships that would be a strain on [his] conscience that [he felt he] must avoid.” R. 70. He submitted a long memorandum of “notes on religion” in which he defined religion as the “sum and essence of one’s basic attitudes to the fundamental problems of human existence,” R. 72 (emphasis in the original); he said that he believed in “Godness” which was “the Ultimate Cause for the fact of the Being of the Universe”; that to deny its existence would but deny the existence of the universe because “anything that Is, has an Ultimate Cause for its Being.” R. 73. There was a relationship to Godness, he stated, in two directions, i. e., “vertically, towards Godness directly,” and “horizontally, towards Godness through Mankind and the World.” R. 74. He accepted the latter one. The Board classified him 1-A-O and Jakobson appealed. The hearing officer found that the claim was based upon a personal moral code and that he was not sincere in his claim. The Appeal Board classified him 1-A. It did not indicate upon what ground it based its decision, i. e., insincerity or a conclusion that his belief was only a personal moral code. The Court of Appeals reversed, finding that his claim came within the requirements of § 6 (j). Because it could not determine whether the Appeal Board had found that Jakobson’s beliefs failed to come within the statutory definition, or whether it had concluded that he lacked sincerity, it directed dismissal of the indictment.
No. 29: Forest Britt Peter was convicted in the Northern District of California on a charge of refusing to submit to induction. In his Selective Service System form he stated that he was not a member of a religious sect or organization; he failed to execute section VII of the questionnaire but attached to it a quotation expressing opposition to war, in which he stated that he concurred. In a later form he hedged the question as to his belief in a Supreme Being by saying that it depended on the definition and he appended a statement that he felt it a violation of his moral code to take human life and that he considered this belief superior to his obligation to the state. As to whether his conviction was religious, he quoted with approval Reverend John Haynes Holmes’ definition of religion as “the consciousness of some power manifest in nature which helps man in the ordering of his life in harmony with its demands... [; it] is the supreme expression of human nature; it is man thinking his highest, feeling his deepest, and living his best.” R. 27. The source of his conviction he attributed to reading and meditation “in our democratic American culture, with its values derived from the western religious and philosophical tradition.” Ibid. As to his belief in a Supreme Being, Peter stated that he supposed “you could call that a belief in the Supreme Being or God. These just do not happen to be the words I use.” R. 11. In 1959 he was classified 1-A, although there was no evidence in the record that he was not sincere in his beliefs. After his conviction for failure to report for induction the Court of Appeals, assuming arguendo that he was sincere, affirmed, 324 F. 2d 173.
Background of § 6 (j).
Chief Justice Hughes, in his opinion in United States v. Macintosh, 283 U. S. 605 (1931), enunciated the rationale behind the long recognition of conscientious objection to participation in war accorded by Congress in our various conscription laws when he declared that “in the forum of conscience, duty to a moral power higher than the State has always been maintained.” At 633 (dissenting opinion). In a similar vein Harlan Fiske Stone, later Chief Justice, drew from the Nation’s past when he declared that
“both morals and sound policy require that the state should not violate the conscience of the individual. All our history gives confirmation to the view that liberty of conscience has a moral and social value which makes it worthy of preservation at the hands of the state. So deep in its significance and vital, indeed, is it to the integrity of man’s moral and spiritual nature that nothing short of the self-preservation of the state should warrant its violation; and it may well be questioned whether the state which preserves its life by a settled policy of violation of the conscience of the individual will not in fact ultimately lose it by the process.” Stone, The Conscientious Objector, 21 Col. Univ. Q. 253, 269 (1919).
Governmental recognition of the moral dilemma posed for persons of certain religious faiths by the call to arms came early in the history of this country. Various methods of ameliorating their difficulty were adopted by the Colonies, and were later perpetuated in state statutes and constitutions. Thus by the time of the Civil War there existed a state pattern of exempting conscientious objectors on religious grounds. In the Federal Militia Act of 1862 control of conscription was left primarily in the States. However, General Order No. 99, issued by the Adjutant General pursuant to that Act, provided for striking from the conscription list those who were exempted by the States; it also established a commutation or substitution system fashioned from earlier state enactments. With the Federal Conscription Act of 1863, which enacted the commutation and substitution provisions of General Order No. 99, the Federal Government occupied the field entirely, and in the 1864 Draft Act, 13 Stat. 9, it extended exemptions to those conscientious objectors who were members of religious denominations opposed to the bearing of arms and who were prohibited from doing so by the articles of faith of their denominations. Selective Service System Monograph Nó. 11, Conscientious Objection 40^41 (1950). In that same year the Confederacy exempted certain pacifist sects from military duty. Id., at 46.
The need for conscription did not again arise until World War I. The Draft Act of 1917, 40 Stat. 76, 78, afforded exemptions to conscientious objectors who were affiliated with a “well-recognized religious sect or organization [then] organized and existing and whose existing creed or principles [forbade] its members to participate in war in any form....” The Act required that all persons be inducted into the armed services, but allowed the conscientious objectors to perform noncombatant service in capacities designated by the President of the United States. Although the 1917 Act excused religious objectors only, in December 1917, the Secretary of War instructed that “personal scruples against war” be considered as constituting “conscientious objection.” Selective Service System Monograph No. 11, Conscientious Objection 54-55 (1950). This Act, including its conscientious objector provisions, was upheld against constitutional attack in the Selective Draft Law Cases, 245 U. S. 366, 389-390 (1918).
In adopting the 1940 Selective Training and Service Act Congress broadened the exemption afforded in the 1917 Act by making it unnecessary to belong to a pacifist religious sect if the claimant’s own opposition to war was based on “religious training and belief.” 54 Stat. 889. Those found to be within the exemption were not inducted into the armed services but were assigned to noncombatant service under the supervision of the Selective Service System. The Congress recognized that one might be religious without belonging to an organized church just as surely as minority members of a faith not opposed to war might through religious reading reach a conviction against participation in war. Congress Looks at the Conscientious Objector (National Service Board for Religious Objectors, 1943) 71, 79, 83, 87, 88, 89. Indeed, the consensus of the witnesses appearing before the congressional committees Was that individual belief — rather than membership in a church or sect — determined the duties that God imposed upon a person in his everyday conduct; and that “there is a higher loyalty than loyalty to this country, loyalty to God.” Id., at 29-31. See also the proposals which were made to the House Military Affairs Committee but rejected. Id., at 21-23, 82-83, 85. Thus, while shifting the test from membership in such a church to one’s individual belief the Congress nevertheless continued its historic practice of excusing from armed service those who believed that they owed an obligation, superior to that due the state, of not participating in war in any form.
Between 1940 and 1948 two courts of appeals held that the phrase “religious training and belief” did not include philosophical, social or political policy. Then in 1948 the Congress amended the language of the statute and declared that “religious training and belief” was to be defined as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code.” The only significant mention of this change in the provision appears in the teport of the Senate Armed Services Committee recommending adoption. It said simply this: “This section reenacts substantially the same provisions as were found in subsection 5 (g) of the 1940 act. Exemption extends to anyone who, because of religious training and belief in his relation to a Supreme Being, is conscientiously opposed to combatant military service or to both combatant and noncombatant military service. (See United States v. Berman [sic], 156 F. (2d) 377, certiorari denied, 329 U. S. 795.)” S. Rep. No. 1268, 80th Cong., 2d Sess., 14.
Interpretation of § 6 (j).
1. The crux of the problem lies in the phrase “religious training and belief” which Congress has defined as “belief in a relation to a Supreme Being involving duties superior to those arising from any human relation.” In assigning meaning to this statutory language we may narrow the inquiry by noting briefly those scruples expressly excepted from the definition. The section excludes those persons who, disavowing religious belief, decide on the basis of essentially political, sociological or economic considerations that war is wrong and that they will have no part of it. These judgments have historically been reserved for the Government, and in matters which can be said to fall within these areas the conviction of the individual has never been permitted to override that of the state. United States v. Macintosh, supra (dissenting opinion). The statute further excludes those whose opposition to war stems from a “merely personal moral code,” a phrase to which we shall have occasion to turn later in discussing the application of § 6 (j) to these cases. We also pause to take note of what is not involved in this litigation. No party claims to be an atheist or attacks the statute on this ground. The question is not, therefore, one between theistic and atheistic beliefs. We do not deal with or intimate any decision on that situation in these eases. Nor do the parties claim the monotheistic belief that there is but one God; what they claim (with the possible exception of Seeger who bases his position here not on factual but on purely constitutional grounds) is that they adhere to theism, which is the “Belief in the existence of a god or gods;... Belief in superhuman powers or spiritual agencies in one or many gods,” as opposed to atheism. Our question, therefore, is the narrow one: Does the term “Supreme Being” as used in § 6 (j) mean the orthodox God or the broader concept of a power or being, or a faith, “to which all else is subordinate or upon which all else is ultimately dependent”? Webster’s New International Dictionary (Second Edition). In considering this question we resolve it solely in relation to the language of § 6 (j) and not otherwise.
2. New would quarrel, we think, with the proposition that in no field of human endeavor has the tool of language proved so inadequate in the communication of ideas as it has in dealing with the fundamental questions of man’s predicament in life, in death or in final judgment and retribution. This fact makes the task of discerning the intent of Congress in using the phrase “Supreme Being” a complex one. Nor is it made the easier by the richness and variety of spiritual life in our country. Over 250 sects inhabit our land. Some believe in a purely personal God, some in a supernatural deity; others think of religion as a way of life envisioning as its ultimate goal the day when all men can live together in perfect understanding and peace. There are those who think of God as the depth of our being; others, such as the Buddhists, strive for a state of lasting rest through self-denial and inner purification; in Hindu philosophy, the Supreme Being is the transcendental reality which is truth, knowledge and bliss. Even those religious groups which have traditionally opposed war in every form have splintered into various denominations: from 1940 to 1947 there were four denominations using the name “Friends,” Selective Service System Monograph No. 11, Conscientious Objection 13 (1950); the “Church of the Brethren” was the official name of the oldest and largest church body of four denominations composed of those commonly called Brethren, id., at 11; and the “Mennonite Church” was the largest of 17 denominations, including the Amish and Hutterites, grouped as “Mennonite bodies” in the 1936 report on the Census of Religious Bodies, id., at 9. This vast panoply of beliefs reveals the magnitude of the problem which faced the Congress when it set about providing an exemption from armed service. It also emphasizes the care that Congress realized was necessary in the fashioning of an exemption which would be in keeping with its long-established policy of not picking and choosing among religious beliefs.
In spite of the elusive nature of the inquiry, we are not without certain guidelines. In amending the 1940 Act, Congress adopted almost intact the language of Chief Justice Hughes in United States v. Macintosh, supra:
“The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.” At 633-634. (Emphasis supplied.)
By comparing the statutory definition with those words, however, it becomes readily apparent that the Congress deliberately broadened them by substituting the phrase “Supreme Being” for the appellation “God.” And in so doing it is also significant that Congress did not elaborate on the form or nature of this higher authority which it chose to designate as “Supreme Being.” By so refraining it must have had in mind the admonitions of the Chief Justice when he said in the same opinion that even the word “God” had myriad meanings for men of faith:
“[P]utting aside dogmas with their particular conceptions of deity, freedom of conscience itself implies respect for an innate conviction of paramount duty. The battle for religious liberty has been fought and won with respect to religious beliefs and practices, which are not in conflict with good order, upon the very ground of the supremacy of conscience within its proper field.” At 634.
Moreover, the Senate Report on the bill specifically states that § 6 (j) was intended to re-enact “substantially the same provisions as were found” in the 1940 Act. That statute, of course, refers to “religious training and belief” without more. Admittedly, all of the parties here purport to base their objection on religious belief. It appears, therefore, that we need only look to this clear statement of congressional intent as set out in the report. Under the 1940 Act it was necessary only to have a conviction based upon religious training and belief; we believe that is all that is required here. Within that phrase would cpme all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent. The test might be stated in these words: A sincere and meaningful belief which occupies in the fife of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition. This construction avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others, and is in accord with the well-established congressional policy of equal treatment for those whose opposition to service is grounded in their religious tenets.
3. The Government takes the position that since Berman v. United States, supra, was cited in the Senate Report on the 1948 Act, Congress must have desired to adopt the Berman interpretation of what constitutes “religious belief.” Such a claim, however, will not bear scrutiny. First, we think it clear that an explicit statement of congressional intent deserves more weight than the parenthetical citation of a case which might stand for a number of things. Congress specifically stated that it intended to re-enact substantially the same provisions as were found in the 1940 Act. Moreover, the history of that Act reveals no evidence of a desire to restrict the concept of religious belief. On the contrary the Chairman of the House Military Affairs Committee which reported out the 1940 exemption provisions stated:
“We heard the conscientious objectors and all of their representatives that we could possibly hear, and, summing it all up, their whole objection to the bill, aside from their objection to compulsory military training, was based upon the right of conscientious objection and in most instances to the right of the ministerial students to continue in their studies, and we have provided ample protection for those classes and those groups.” 86 Cong. Rec. 11368 (1940).
During the House debate on the bill, Mr. Faddis of Pennsylvania made the following statement:
“We have made provision to take care of conscientious objectors. I am sure the committee has had all the sympathy in the world with those who appeared claiming to have religious scruples against rendering military service in its various degrees. Some appeared who had conscientious scruples against handling lethal weapons, but who had no scruples against performing other duties which did not actually bring them into combat. Others appeared who claimed to have conscientious scruples against participating in any of the activities that would go along with the Army. The committee took all of these into consideration and has written a bill which, I believe, will take care of all the reasonable objections of this class of people.” 86 Cong. Rec. 11418 (1940).
Thus the history of the Act belies the notion that it was to be restrictive in application and available only to those believing in a traditional God.
As for the citation to Berman, it might mean a number of things. But we think that Congress’ action in citing it must be construed in such a way as to make it consistent with its express statement that it meant substantially to re-enact the 1940 provision. As far as we can find, there is not one word to indicate congressional concern over any conflict between Kauten and Berman. Surely, if it thought that two clashing interpretations as to what amounted to “religious belief” had to be resolved, it would have said so somewhere in its deliberations. Thus, we think that rather than citing Berman for what it said “religious belief” was, Congress cited it for what it said “religious belief” was not. For both Kauten and Berman hold in common the conclusion that exemption must be denied to those whose beliefs are political, social or philosophical in nature, rather than religious. Both, in fact, denied exemption on that very ground. It seems more likely, therefore, that it was this point which led Congress to cite Berman. The first part of the § 6 (j) definition — belief in a relation to a Supreme Being — was indeed set out in Berman, with the exception that the court used the word “God” rather than “Supreme Being.” However, as the Government recognizes, Berman took that language word for word from Macintosh. Far from requiring a conclusion contrary to the one we reach here, Chief Justice Hughes’ opinion, as we have pointed out, supports our interpretation.
Admittedly, the second half of the statutory definition— the rejection of sociological and moral views — was taken directly from Berman. But, as we have noted, this same view was adhered to in United States v. Kauten, supra. Indeed the Selective Service System has stated its view of the cases’ significance in these terms: “The United States v. Kauten and Herman Berman v. United States cases ruled that a valid conscientious objector claim to exemption must be based solely on'religious training and belief’ and not on philosophical, political, social, or other grounds... Selective Service System Monograph No. 11, Conscientious Objection 337 (1950). See id., at 278. That the conclusions of the Selective Service System are not to be taken lightly is evidenced in this statement by Senator Gurney, Chairman of the Senate Armed Services Committee and sponsor of the Senate bill containing the present version of § 6 (j):
“The bill which is now pending follows the 1940 act, with very few technical amendments, worked out by those in Selective Service who had charge of the conscientious-objector problem during the war.” x 94 Cong. Rec. 7305 (1948).
Thus we conclude that in enacting § 6 (j) Congress simply made explicit what the courts of appeals had correctly found implicit in the 1940 Act. Moreover, it is perfectly reasonable that Congress should have selected Berman for its citation, since this Court denied certiorari in that case, a circumstance not present in Kauten.
Section 6 (j), then, is no more than a clarification of the 1940 provision involving only certain “technical amendments,” to use the words of Senator Gurney. As such it continues the congressional policy of providing exemption from military service for those whose opposition is based on grounds that can fairly be said to be “religious.” To hold otherwise would not only fly in the face of Congress’ entire action in the past; it would ignore the historic position of our country on this issue since its founding.
4. Moreover, we believe this construction embraces the ever-broadening understanding of the modern religious community. The eminent Protestant theologian, Dr. Paul Tillich, whose views the Government concedes would come within the statute, identifies God not as a projection “out there” or beyond the skies but as the ground of our very being. The Court of Appeals stated in No. 51 that Jakobson’s views “parallel [those of] this eminent theologian rather strikingly.” 325 F. 2d, at 415-416. In his book, Systematic Theology, Dr. Tillich says:
“I have written of the God above the God of theism.... In such a state [of self-affirmation] the God of both religious and theological language disappears. But something remains, namely, the seriousness of that doubt in which meaning within meaninglessness is affirmed. The source of this affirmation of meaning within meaninglessness, of certitude within doubt, is not the God of traditional theism but the ‘God above God,’ the power of being, which works through those who have no name for it, not even the name God.” II Systematic Theology 12 (1957).
Another eminent cleric, the Bishop of Woolwich, John A. T. Robinson, in his book, Honest To God (1963), states:
“The Bible speaks of a God ‘up there.’ No doubt its picture of a three-decker universe, of ‘the heaven above, the earth beneath and the waters under the earth,’ was once taken quite literally... At 11. “[Later] in place of a God who is literally or physically ‘up there’ we have accepted, as part of our mental furniture, a God who is spiritually or metaphysically ‘out there.’... But now it seems there is no room for him, not merely in the inn, but in the entire universe: for there are no vacant places left. In reality, of course, our new view of the universe has made not the slightest difference....” At 13-14.
“But the idea of a God spiritually or metaphysically ‘out there’ dies very much harder. Indeed, most people would be seriously disturbed by the thought that it should need to die at all. For it is their God, and they have nothing to put in its place.... Every one of us lives with some mental picture of a God ‘out there,’ a God who ‘exists’ above and beyond the world he made, a God ‘to’ whom we pray and to whom we ‘go’ when we die.” At 14.
“But the signs are that we are reaching the point at which the whole conception of a God ‘out there,’ which has served us so well since the collapse of the three-decker universe, is itself becoming more of a hindrance than a help.” At 15-16. (Emphasis in original.)
The Schema of the recent Ecumenical Council included a most significant declaration on religion:
“The community of all peoples is one. One is their origin, for God made the entire human race live on all the face of the earth. One, too, is their ultimate end, God. Men expect from the various religions answers to the riddles of the human condition: What is man? What is the meaning and purpose of our lives? What is the moral good and what is sin? What are death, judgment, and retribution after death?
“Ever since primordial days, numerous peoples have had a certain perception of that hidden power which hovers over the course of things and over the events that make up the lives of men; some have even come to know of a Supreme Being and Father. Religions in an advanced culture have been able to use more refined concepts and a more developed language in their struggle for an answer to man’s religious questions.
“Nothing that is true and holy in these religions is scorned by the Catholic Church. Ceaselessly the Church proclaims Christ, ‘the Way, the Truth, and the Life,’ in whom God reconciled all things to Himself. The Church regards with sincere reverence those ways of action and of life, precepts and teachings which, although they differ from the ones she sets forth, reflect nonetheless a ray of that Truth which enlightens all men.”
Dr. David Saville Muzzey, a leader in the Ethical Culture Movement, states in his book, Ethics As a Religion (1951), that “[ejverybody except the avowed atheists (and they are comparatively few) believes in some kind of God,” and that “The proper question to ask, therefore, is not the futile one, Do you believe in God? but rather, What kind of God do you believe in?” Id., at 86-87. Dr. Muzzey attempts to answer that question:
“Instead of positing a personal God, whose existence man can neither prove nor disprove, the ethical concept is founded on human experience. It is anthropocentric, not theocentric. Religion, for all the various definitions that have been given of it, must surely mean the devotion of man to the highest ideal that he can conceive. And that ideal is a community of spirits in which the latent moral potentialities of men shall have been elicited by their reciprocal endeavors to cultivate the best in their fellow men. What ultimate reality is we do not know; but we have the faith that it expresses itself in the human world as the power which inspires in men moral purpose.” At 95.
“Thus the ‘God’ that we love is not the figure on the great white throne, but the perfect pattern, envisioned by faith, of humanity as it should be, purged of the evil elements which retard its progress toward 'the knowledge, love and practice of the right.’ ” At 98.
These are but a few of the views that comprise the broad spectrum of religious beliefs found among us. But they demonstrate very clearly the diverse manners in which beliefs, equally paramount in the lives of their possessors, may be articulated. They further reveal the difficulties inherent in placing too narrow a construction on the provisions of § 6 (j) and thereby lend conclusive support to the construction which we today find that Congress intended.
5. We recognize the difficulties that have always faced the trier of fact in these cases. We hope that the test that we lay down proves less onerous. The examiner is furnished a standard that permits consideration of criteria with which he has had considerable experience. While the applicant’s words may differ, the test is simple of application. It is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?
Moreover, it must be remembered that in resolving these exemption problems one deals with the beliefs of different individuals who will articulate them in a multitude of ways. In such an intensely personal area, of course, the claim of the registrant that his belief is an essential part of a religious faith must be given great weight. Recognition of this was implicit in this language, cited by the Berman court from State v. Amana Society, 132 Iowa 304, 109 N. W. 894 (1906):
“Surely a scheme of life designed to obviate [man’s inhumanity to man], and by removing temptations, and all the allurements
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_interven
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
Joseph J. SCHULTZ, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Robert E. Gray, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GRAND UNION COMPANY, Respondent. Robert E. Gray, Intervenor.
Nos. 15238, 15303.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 3, 1960.
Decided Sept. 15, 1960.
Danaher, Circuit Judge, dissented.
Mr. Harry Pozefsky, Gloversville, N. Y., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Mr. Herbert S. Thatcher, Washington, D. C., was on the brief, for petitioner in No. 15,238.
Mr. Frederick U. Reel, Attorney, National Labor Relations Board, with whom Messrs. Thomas J. McDermott, Associate General Counsel, National Labor Relations Board, and Marcel Mallet-Prevost, Assistant General Counsel, National Labor Relations Board, were on the brief for respondent in No. 15,238 and petitioner in No. 15,303.
Mr. Robert H. Jones, III, Albany, N. Y., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Mr. Thomas E. Shroyer, Washington, D. C., was on the brief, for intervenor.
No appearance was entered for respondent in No. 15,303.
Before Washington, Danaher and Bastían, Circuit Judges.
BASTIAN, Circuit Judge.
These cases are before this court on the petition of Joseph J. Schultz to review and modify or set aside an order of the National Labor Relations Board (No. 15,238), and on petition of the National Labor Relations Board to enforce that order against The Grand Union Company, hereinafter referred to as the Company (No. 15,303). Pursuant to Rule 38 (k) of this court, 28 U.S.C.A., the parties, with the approval of this court, have stipulated the facts and issues following.
On January 17, 1957, Robert E. Gray filed with the National Labor Relations Board a petition under Section 9(c) of the National Labor Relations Act, 29 U.S.C.A. § 159(c), hereinafter referred to as the Act, in which he sought to be certified as the statutory bargaining representative of the employees in the Waterford, New York, warehouse of The Grand Union Company. Local 294 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, intervened, likewise seeking certification as bargaining representative of these employees. The Board thereupon directed and conducted an election to determine which, if either, the employees wished to be their collective bargaining representative. The employees were thus afforded the choice of Robert E. Gray, Local 294 or neither. Upon Gray obtaining a majority of the votes, he was, on August 19, 1957, certified by the Board as the bargaining representative of the employees.
On September 23, 1957, the Company and Gray executed a collective bargaining agreement which embodied therein a union security clause under Section 8(a) (3) of the Act, 29 U.S.C.A. § 158(a) (3). This clause, which is set forth in paragraph 1(b) of the agreement provides:
“Each employee, as a condition of employment, will thirty (30) days after his employment, or the effective date of this agreement, whichever is later, designate Robert E. Gray as his representative for collective bargaining purposes and shall continuously maintain said designation. On written notice from the representative that an employee who has been employed for more than thirty (30) days has failed to tender the periodic dues required as a condition of maintaining said designation, the Employer will discharge said employee within seven (7) days after receipt of such notice unless within such seven (7) days such employee’s failure to make such designation or to tender such dues is cured.”
At the time of the agreement, Gray had not filed the various documents required by Sections 9(f), (g) and (h) of the Act. These sections have since been repealed and Section 8(a) (3) has been amended by eliminating the requirement of compliance with those subdivisions of Section 9. Accordingly, the Board has moved to dismiss as moot its petition for enforcement, based on failure to comply with Section 9 (No. 15,303).
Subsequently, based upon charges filed by Joseph J. Schultz, a Grand Union employee, petitioner in No. 15,238, the Board’s Regional Office issued a complaint against the Company alleging, in material part, that it violated Sections 8(a) (1) and (3) of the Act by executing with Gray the collective bargaining agreement containing the union security clause, since Gray was not a “labor organization” within the meaning of Section 2(5), 29 U.S.C.A. § 152(5). (See infra) and 8(a) (3) of the Act.
In his Intermediate Report the trial examiner concluded that Gray was not a labor organization within Sections 2(5) and 8(a) (3) and therefore the Company, by entering into, maintaining and enforcing its agreement with Gray, had violated those sections. The Board, however, upon reviewing the entire proceeding, concluded, in material part, that Gray was in fact a labor organization within both Sections 2(5) and 8(a) (3).
Throughout the Act it is quite apparent from the manner in which the terms “individual” and “labor organization” are disjunctively used that the drafters attempted to avoid confusion in the application and coverage of those terms. Thus in Section 2(1) the term “person” is defined as including “one or more individuals, labor organizations, * * Section 2(4) defines “representatives” as including “any individual or labor organization.” Section 8(d), wherein Congress defines the scope of the obligation to bargain collectively, again evidences the intention to distinguish the terms by referring to each separately. In Section 9(c) (1) (A), which authorizes both individuals and labor organizations to file either a petition for certification or de-certification, it is provided that the petition may be filed “by an employee or group of employees or any individual or labor organization acting in their behalf.” Again in Section 9(c) (1) (A) it is provided that a petition for decertifi-cation may be filed where it is alleged “that the individual or labor organization which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative.” Further, in Section 9(c) (1) (B), which authorizes an employer to institute a representation proceeding, again a distinction is drawn between the terms.
Finally, further evidence of Congress’ intention to distinguish the terms is found in the legislative history of Section 303 of the Labor Management Relations Act, 29 U.S.C.A. § 187, which section parallels Section 8(a) (3). Upon introducing this amendment, Senator Taft stated:
“The word ‘person’ in line 2 will be changed to read ‘labor organization’, so that suits in secondary boycotts may be brought only against labor organizations and not against individuals.” (93 Cong.Rec. 4843, Leg.His., op. cit. p. 1365)
Section 2(5) of the Act defines the term “labor organization” as follows:
“(5) The term ‘labor organization’ means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” (Emphasis supplied.)
In light of the fact that Congress chose to omit the word “individual” from the definition of “labor organization” and the frequency with which both terms are disjunctively used throughout the Act, a clear intention on the part of Congress to exclude the individual is indicated, at least insofar ,as the broad definition is concerned. Further, the phrase “in which employees participate” contemplates the group as a whole participating in the formulation of policy and procedures to be carried out in the organization, thus providing a democratic form of organization wherein the members have full voice and power to enforce their views.
We are, therefore, left with the single issue of whether the Board properly determined that Robert E. Gray, an individual, was a “labor organization” as the latter term is used in Section 8(a) (3) of the Act.
As the Board recently stated in the Keystone Coat, Apron & Towel Supply Company case:
“We do not believe that it will be burdensome upon any party for the Board to insist upon compliance with the congressional policy as reflected in the union shop proviso of Section 8(a) (3) of the Act. This provision is among the most carefully considered and completely defined elements of the policy embodied in the Taft-Hartley Act.”
Thus, in the light of the fact that this section was so closely scrutinized, it seems quite apparent that it was the intent of Congress to exclude the individual from its application. Furthermore, in the light of this “most carefully considered” section, Congress, should it have wished to make it applicable to both entities, would have alluded to neither and have chosen the term “representatives”, which as defined in Section 2(4) “includes any individual or labor organization.”
An examination of other language used in Section 8(a) (3) further supports this view. Such words as “membership therein” and “acquiring or retaining membership” seems unquestionably to exclude an individual from the application of this section.
Citing South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 259, 60 S.Ct. 544, 549, 84 L.Ed. 732, in which the Supreme Court quoted from its opinion in Warner v. Goltra, 293 U.S. 155, 158, 55 S.Ct. 46, 79 L.Ed. 254, the Government aptly points out that statutes “must be read in the light of the mischief to be corrected and the end to be attained.”
The power which Congress has afforded labor organizations under this section is unquestionably great. Whether an employee retains his right to work or not is dependent upon his performance of the conditions of the union security clause executed between the labor organization and the employer. Hence, if he refuses to designate the labor organization as his collective bargaining agent or to pay such organization the dues assessed, the employee is subject to summary dismissal from his employment. Obviously then, great caution must be exercised in the granting of such power. Where a union, unlike an individual, is bargaining representative, the union security agreement entered into is between the employees, who in reality are the union, and the employer. However, where the bargaining agent is an individual, a single entity, and such an agreement is executed, the real parties to the agreement are the individual and the employer.
In the ease before us, Gray has set up a structure whereby the employees would elect stewards and trustees to assist him in discharging his duties as bargaining agent. Dues collected are said to be deposited by Gray in a separate bank account and used for organization and representation purposes, etc., as authorized and approved by the employees or the joint administrative board composed of the stewards and trustees. Under such a structure it may be that Gray stands in a fiduciary relationship to all employees of the organization and thus perhaps may be controlled by the courts and perhaps the Board for a breach of the trust owed by him. However, grave problems arise regarding the mechanics of initiating any censure or penalty and for all practical purposes workable standards for control are practically nonexistent. With unions, on the other hand, formalized standards are available to protect the employees such as are found in the constitution and by-laws of the union and in the statutes and decisions of our courts.
Further, a true organization within the meaning of the statute has permanency and continuity. An individual is mortal: subject to illness and disability. Forcing him to account, or to take particular action desired by the employees, might be thwarted by his death or his mental or physical incompetence. Within the structure of an organization, duties and responsibilities can be distributed — a system of checks and balances can be set up. Amounts received as dues are, ideally at least, handled and accounted for on a basis which is designed to devote them to the good of the entire employee group. This is difficult indeed if dues are paid to an individual with no clear directive as to what he should do with them. For these reasons, any suggestion that there is present here a real “labor organization” created by the employees, and that they selected Mr. Gray to represent that organization, seems untenable on this record.
Upon concluding that an “individual” was not encompassed within the meaning of “labor organization” as that term is used in Section 8(b) (4) (C), this court stated, in Bonnaz, Hand Embroiderers, etc. v. N. L. R. B., supra at page 48 of 230 F.2d:
“[The] plain meaning [of the term ‘labor organization’] does not, in the present ease, produce an absurd result or one plainly at variance with the policy of the legislation as a whole.”
We believe such to be true also in the reading of Section 8(a) (3). On the contrary, should we give to the term “labor organization” the interpretation urged by the Board, it would inevitably “produce an absurd [and dangerous] result [and] one plainly at variance with the policy of the legislation as a whole.”
We have not overlooked the fact that the word “individual” may be encompassed within the meaning of “labor organization” as the latter term is used in certain other sections of the Act not here in issue. As the Supreme Court said in Atlantic Cleaners & Dyers, Inc. v. United States, 1932, 286 U.S. 427, 433, 52 S.Ct. 607, 606, 76 L.Ed. 1204:
“Most words have different shades of meaning and consequently may be variously construed, not only when they occur in different statutes, but when used more than once in the same statute or even in the same section. * * * Where the subject matter to which the words refer is not the same in the several places where they are used, or the conditions are different, * * * the meaning well may vary to meet the purposes of the law * * *.
“It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the Legislature intended it should have in each instance.”
Thus, in viewing the term “labor organization” as it is used in sections of the Act, we must apply the definition which best serves to carry out the intentions and purposes of the act. In the case of the sections involved in this proceeding, we believe we are “giving to the word the meaning which the Legislature intended it should have.”
To conclude: Section 8(a) (3) of the Act provides that it shall be an unfair labor practice for an employer — by discrimination in regard to hire or tenure of employment or any term or condition of employment — to “encourage or discourage membership in any labor organization,” except as permitted by the provisos to the section (see note 2, supra). Here, the trial examiner found that the company had violated the Act by discouraging membership in any union which might wish to displace Gray. It did this, he said, by forcing the employees to pay dues to Gray. Certainly, no employee would pay dues to a union if he was already paying them to Gray. The trial examiner concluded that the security clause in Gray’s contract was not justified by the proviso to Section 8(a) (3), because Gray was not a labor organization. We think that the examiner was correct in this view, and that the Board erred in reversing his decision.
Case No. 15,238 will be remanded to the Board for further proceedings consistent with this opinion.
Case No. 15,303 will be dismissed.
. See Bonnaz, Hand Embroiderers, etc. v. National Labor Relations Board, 1956, 97 U.S.App.D.C. 234, 230 F.2d 47.
. 29 U.S.C. § 158. Unfair labor practices
(a) It shall be an unfair labor practice for an employer
*****
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159(a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made and has at the time the agreement was made or within the preceding twelve months received from the Board a notice of compliance with section 159(f) (g), (h) of this title, and (ii) unless following an election beld as provided in section 159(e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership
. 121 N.L.R.B. 880, 884.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
|
songer_frivol
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that either the original case was frivolous or raised only trivial issues and therefore was not suitable for actions on the merits?" 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".
Stanley SHEFTIC, Appellant, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee. John Howard RUNYON, Jr., Appellant, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee.
Nos. 10493, 10515.
United States Court of Appeals Fourth Circuit.
Argued June 23, 1966.
Decided May 4, 1967.
John D. Phillips, Jr., and Arthur M. Recht, Wheeling, W. Va. (Court-assigned counsel), for appellants.
George H. Mitchell, Asst. Atty. Gen. of West Virginia (C. Donald Robertson, Atty. Gen. of West Virginia, on brief), for appellee.
Before BOREMAN and BRYAN, Circuit Judges, and LEWIS, District Judge.
BOREMAN, Circuit Judge:
These are appeals from orders of the United States District Court for the Northern District of West Virginia denying habeas corpus relief to prisoners in custody of the State of West Virginia. Since the same legal issue is present in both cases we consider them together.
Petitioner, Runyon, was indicted on July 3, 1961, in the Circuit Court of Wayne County, West Virginia, for breaking and entering. Counsel was appointed to represent him at trial. He first pleaded not guilty but subsequently changed his plea to guilty and was sentenced to confinement in the state penitentiary at Moundsville, Marshall County, West Virginia, for a term of one to ten years. On October 2, 1965, he filed a petition for a writ of habeas corpus in the Supreme Court of Appeals of West Virginia, charging that he had been denied the effective assistance of counsel. This petition was denied without a hearing on October 18,1965. Thereafter, on December 14, 1965, Runyon filed a petition for a writ of habeas corpus in the United States District Court which petition was denied by order dated January 12, 1966, and the case was dismissed for failure to exhaust state remedies.
Petitioner, Sheftic, was indicted in April 1941 in Hancock County, West Virginia, on two charges of breaking and entering. He pleaded guilty and was sentenced to confinement in the state penitentiary. On November 4, 1943, the warden of the prison instituted proceedings under the West Virginia Habitual Criminal Statute, charging that Sheftic had four previous felony convictions. After a jury trial in which the sole issue was as to his identity Sheftic was sentenced to life imprisonment. Sheftic has filed various petitions for writs of habeas corpus in the Supreme Court of Appeals of West Virginia. On November 23, 1964, his latest petition filed in that court was denied without a hearing. In essence, his petition charged that the West Virginia statute authorizing the warden to institute recidivist proceedings was void and that the original guilty plea had been coerced. Subsequently Sheftic filed his petition in the court below for a writ of habeas corpus. This petition was denied also on the ground that Sheftic had failed to exhaust his state remedies.
THE DECISION IN MILLER v. BOLES
The district court based its denial of these petitions on its earlier decision in Miller v. Boles, 248 F.Supp. 49 (N.D.W.Va.1965). That decision sought to clarify the guidelines which should govern federal district courts in determining whether to entertain a state prisoner’s petition for habeas corpus relief. The court there pointed out that the recent Supreme Court decisions in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), have extricated the federal habeas corpus remedy from the “procedural pitfalls which often foreclosed relief without a decision on the merits.” 248 F.Supp. at 51. The court recognized the teaching of Townsend v. Sain, supra, which directs federal district courts to hold evidentiary hearings whenever the facts are in dispute and where the “habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.” 372 U.S. 293 at 312-313, 83 S. Ct. 745, quoted with approval 248 F.Supp. at 53, n. 15.
However, the court in Miller concluded that the results reached in Fay v. Noia and Townsend v. Sain were chaotic for federal district judges and that these decisions had engendered criticism of federal encroachment upon “the prerogatives of State criminal justice,” 248 F.Supp. 53. It stated its opinion that the solution to the problems created by the expansion of the remedy of federal habeas corpus was the federal policy of exhaustion of remedies embodied in 28 U.S.C. § 2254 as amended. Pub.L.No. 89-711, 80 Stat. 1105 (Nov. 2, 1966). This statute provides in part as noted in the margin below.
The Miller court emphasized that the exhaustion doctrine had nothing to do with federal jurisdiction to hear petitions by state prisoners but was grounded on principles of comity and a desire to give state courts the first opportunity to redress invalid state convictions. It then undertook to apply these principles to the practice in West Virginia noting that the usual postconviction remedy in the state was via habeas corpus. The State Constitution and statutes provided for original habeas corpus jurisdiction in both the Supreme Court of Appeals and the circuit courts, with appellate jurisdiction in the Supreme Court of Appeals to review the action of the circuit courts. However, the court ultimately concluded that the application to the circuit court was the appropriate method of seeking postconviction relief, observing that the Supreme Court of Appeals “does not appear to have the facilities to hold evidentiary hearings on original writs addressed to it.” 248 F.Supp. at 60. Reasoning that applications to the West Virginia Supreme Court of Appeals would result in hearings only if that court exercised its-discretion, the district court determined that “[a]s a practical matter the circuit court is the forum to petition in order to get a full State court evidentiary hearing.” 248 F.Supp. at 61. Accordingly, it held that since Miller had filed his petition for habeas corpus only in the Supreme Court of Appeals and not in the circuit court he had not exhausted his-state remedies. Miller’s petition was dismissed.
In dismissing the petitions of prisoners Runyon and Sheftic in the instant cases, the district court simply stated that its action was based on its decision in Miller. Counsel for these prisoners argue that the prisoners chose one of two alternative methods available under state law to attack their convictions and that they are not required to exhaust both alternatives to satisfy § 2254; that it would be futile to expect the circuit court to grant hearings after the Supreme Court of Appeals had denied the prisoners relief on the identical claims they would urge before the circuit court; and, that the court in Miller v. Boles, supra, 248 F.Supp. 49, makes two erroneous assumptions: (1) that the scope of habeas corpus in West Virginia is akin to federal habeas corpus, and (2) that the circuit courts do grant full and fair evidentiary hearings. Petitioners’ counsel cite two recent decisions of the West Virginia Supreme Court of Appeals to support their contention that there is much confusion as to whether all constitutional violations can be raised via state habeas corpus. It was stated to us during argument that since the district court’s decision in Miller v. Boles 111 petitions for habeas corpus have been filed in the Circuit Court of Marshall County, said county being the site of the state penitentiary, and only one has been granted. It is urged that as a practical matter it is virtually impossible to secure an evidentiary hearing in the West Virginia state courts.
We conclude that these judgments of the district court in the instant cases should be reversed and that the decision in Miller v. Boles, from which no appeal was taken, must be disapproved.
When these prisoners filed their petitions for habeas corpus in the Supreme Court of Appeals they were utilizing an avenue of relief opened to them by both the West Virginia Constitution and statutes. No law or constitutional provision required them to first seek habeas corpus relief in any circuit court of West Virginia. The only requirement that prisoners first present their petitions for writs of habeas corpus in the state’s circuit courts is found in the decision in the Miller case where the court attempted to apply the principle of comity embodied in 28 U.S.C. § 2254, despite the provision in the West Virginia Constitution that application could be made originally to the Supreme Court of Appeals.
While the Supreme Court of the United States has not decided this precise question it has held in other circumstances that where two alternative methods exist it is necessary to utilize only one in order to give the state courts an opportunity to consider and pass upon the matter presented. See Brown v. Allen, 344 U.S. 443, 447-450, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950); Wade v. Mayo, 334 U.S. 672, 677, 68 S.Ct. 1270, 92 L.Ed. 1647 (1948). In United States ex rel. Almeida v. Baldi, 195 F.2d 815, 33 A.L.R.2d 1407 (3 Cir. 1952), it was held that a petition for a writ of habeas corpus to the Supreme Court of Pennsylvania and the denial of certiorari by the United States Supreme Court were sufficient to exhaust state remedies despite the fact that the lower courts of the state could entertain petitions for writs of habeas corpus. The court explained that while a denial of habeas corpus was not res judicata “we are nonetheless of the opinion that no lower Pennsylvania Court could be reasonably expected, in view of the action of the Supreme Court of Pennsylvania and of the Supreme Court of the United States, to grant the writ to Almeida.” Id. at 824. See Lane v. Warden, Maryland Penitentiary, 320 F.2d 179 (4 Cir. 1963).
While the 1967 amendment to the West Virginia statute clearly states that a matter will not be considered to have been previously adjudicated unless there has been a full and fair hearing in the state courts, or a waiver by the prisoner, we do not feel that these prisoners should now be relegated to the state courts.
In Case v. State of Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965), the Supreme Court, after granting certiorari to determine whether Nebraska had to provide its prisoners with a procedure to raise federal constitutional issues, took notice of a Nebraska legislative amendment providing such a remedy and dismissed the writ and remanded to the Supreme Court of Nebraska. However, that case is distinguishable from the cases here on appeal. The Nebraska Supreme Court had previously held it had no authority to hear the prisoner’s case, while the Supreme Court of Appeals of West Virginia clearly had such authority, even prior to the recent amendment. In addition, in Case v. State of Nebraska, the prisoner had not reached the lower federal courts and there was no real issue of exhaustion of remedies. In the instant case the prisoners are in the federal courts and the state has had ample opportunity to pass on their claims for relief. While there has been no decision on the merits in the cases before us we think that the comity principles embodied in § 2254 do not require a return of these cases to the state courts for presentation of the identical claims anew.
These cases at bar are also distinguishable from White v. Swenson, D.C., 261 F. Supp. 42 (1966), a decision by the federal district court for Western Missouri sitting en banc. The court indicated that the state courts should be given every opportunity to rule on the merits of the prisoner’s claim before the federal courts entertained habeas corpus petitions. However, that court was not confronted with the situation where, as here, state prisoners have reasonably satisfied every possible demand made upon them by West Virginia law as it existed at the time they filed their petitions with the Supreme Court of Appeals for postconviction relief. These prisoners have waited too long to now be told to return to the state courts of West Virginia with the same claims they presented there as early as 1964. Any tangential benefits which might accrue to the cause of federalism by directing these prisoners back to the state courts are greatly outweighed by the real benefit to these prisoners by permitting them to finally present their claims in the federal courts. The judgments of the district court will be reversed and these cases remanded to that court for further proceedings consistent with this opinion.
Reversed and remanded.
. W.Va.Code, ch. 62, art. 8, § 4 (1931).
. “(b) 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.
“(c) 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.”
. W.Va.Const., art. VIII, § 3, W.Va.Oode, § 53-4-1 (1966).
. W.Va.Const., art. VIII, § 12, W.Va.Oode, § 53-4-1 (1966).
. W.Va.Oode § 58-5-1 (e) (1966).
. The court pointed out, however, that the Supreme Court of Appeals had the power to transfer the case to an appropriate court for a hearing. W.Va.Oode, § 53-4-2 (1966).
. State ex rel. Scott v. Boles, W.Va., 147 S.E.2d 486 (1966); State ex rel. Smith v. Boles, W.Va., 146 S.E.2d 585 (1965).
. See notes 3, 4, and 5.
. Subsequent to the decision in Miller v. Boles, supra, and subsequent to the presentation of arguments on this appeal the legislature of West Virginia revised the habeas corpus law and postconvietion procedure, reaffirmed the constitutional provision vesting original jurisdiction in the state Supreme Court by giving that court authority to grant the writ in the first instance, hold hearings and/or take evidence upon the return of such writ. The legislature did not accept the formula of Miller v. Boles and, at least by implication, rejected such approach. Enrolled S.B. No. 38 (Jan. 25, 1967), amending West Virginia Code, chapter 53, by adding thereto a new Article 4A. This amendment provides that West Virginia prisoners may now raise federal constitutional issues in the state courts, W.Va. Code, § 53-4A-l(a) (1967 amendment); and that they must be given a full and fair evidentiary hearing, W.Va.Code, § 53-4A-7 (a) (1967 amendment). The amendment further provides that the court hearing the matter must make findings of fact, state conclusions of law and the grounds, state or federal, on which resolution of the prisoner’s claim is based. W. Va.Code, § 53-4A-7(e) (1967 amendment). This 1967 amendment appears to afford adequate postconviction remedies to West Virginia prisoners.
. The actual issue before the court in White v. Swenson, supra, was whether a state prisoner whose appeal had been dismissed in the state courts for failure to timely move for a new trial had exhausted his state remedies. The court held that he should file a motion for state postconviction relief before coming to the federal courts. 261 F.Supp. 56-57.
Question: Did the court conclude that either the original case was frivolous or raised only trivial issues and therefore was not suitable for actions on the merits?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_appstate
|
2
|
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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Pedro ARROYO, Petitioner-Appellee, v. Everett JONES, Superintendent, Great Meadow Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents-Appellants.
No. 1267, Docket 82-2072.
United States Court of Appeals, Second Circuit.
Argued June 17, 1982.
Decided July 23, 1982.
Certiorari Denied Nov. 29,1982.
See 103 S.Ct. 468.
John D. B. Lewis, New York City (William E. Hellerstein, The Legal Aid Society, New York City, on the brief), for petitionerappellee.
Mark Dwyer, New York City (Robert M. Morgenthau, Dist. Atty. for New York County, Amyjane Rettew, New York City, on the brief), for respondents-appellants.
Before OAKES, MESKILL, and KEARSE, Circuit Judges.
KEARSE, Circuit Judge:
The State of New York appeals from an order of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, 534 F.Supp. 980, granting the petition of state prisoner Pedro Arroyo for a writ of habeas corpus on the ground that the state trial judge’s supplemental jury charge, that “people are presumed to intend the natural, probable and logical consequence of their acts,” unconstitutionally deprived Arroyo of the presumption of innocence, in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). We modify and affirm the order of the district court.
FACTS
Arroyo was convicted in 1973, after a jury trial in New York State Supreme Court, of one count of attempted murder, three counts of assault, and one count of possessing a weapon. Two versions of the events leading to the charges against Arroyo emerged at the trial. According to the prosecution’s witnesses, on April 13, 1972, Arroyo was apprehended by two New York City police officers shortly after leaving the scene of a robbery. He was being returned to the scene of the robbery when he broke free from the officers and ran. He was quickly pursued by a third officer, Raymond Bernard, who attempted to tackle him. Arroyo dodged the tackle, drew a revolver, and fired at Bernard. Bernard had drawn his own handgun and extended his right arm into a firing position. Arroyo’s shot, from five feet away, struck and shattered the grip of Bernard’s gun, and the spent bullet pierced Bernard’s police jacket but not his chest. Bernard returned fire; Arroyo leaped over a car hood and fired at Bernard twice more, missing both times. The police officers eventually wounded Arroyo, who thereupon surrendered.
Arroyo testified that his memory of the events was sketchy because of the injuries he had sustained. He recalled having been accosted by a gun-wielding stranger who had a second gun in his waistband. He stated that he had immediately pushed aside and held the man’s gun hand, grabbed the other gun from the man’s belt, struck him with that gun, and fled. As he ran, he was shot and wounded. Arroyo testified that he had no recollection of ever firing a gun. Two other defense witnesses also testified that Arroyo had not fired a gun and that all of the shooting had been done by the police officers.
When the trial judge instructed the jury, before discussing any of the charges specifically, she instructed the jury that the prosecution bore the burden of proving every element of every alleged crime beyond a reasonable doubt. As to the attempted murder count, the judge stated that the “intent to cause the death of Raymond Bernard” was an essential element of the crime, and defined intent without using any language that could have been interpreted as shifting the burden of proof. The same unobjectionable instruction as to intent was given twice more with respect to other counts. These initial instructions are unchallenged.
Several times during the course of its deliberations, the jury made inquiries of the trial judge. First, it asked to have the testimony of Officer Bernard reread. The second request, made approximately four hours after the deliberations had begun, was for “the law and the interpretation of the [attempted murder] charge.” The trial judge repeated, in large part, her initial instructions concerning that count, including the proper instructions on intent. After deliberating for another two hours, the jury returned to ask, “[d]oes shooting at a policeman necessarily constitute attempted] murder?” The trial judge responded as follows:
[T]he law which defines murder and attempt mentions only persons as to the elements of that crime, it applies to all persons.
Attempted murder is defined in the law, a person is guilty of attempted murder[,] and I am combining the statute on attempt as well as murder[,] when with intent to cause the death of another person he attempts to cause the death of such person.
(Tr. 808.) The jury returned to the jury room, but returned twelve minutes later, some six and one-half hours after it had begun deliberations, with another inquiry, as follows:
We have reached agreements on four charges and divided on the fifth one, to assist us with the latter, we would seek further classification [sic] of the words conscious intent.
(Tr. 810.) The parties are in accord that the charge on which the jury had not reached agreement was that of attempted murder.
The trial judge conferred with the prosecutor and defense counsel before responding. The prosecutor suggested that the jury be instructed that “people are presumed to intend the natural, probable and logical consequence of their acts.” Arroyo’s lawyer stated that he had no objection. The trial court then gave the following supplemental instruction:
Now, Members of the Jury, a person acts intentionally with respect to attempting to cause death or injury to another person, when the alleged perpetrator’s conscious objective is to cause such death or injury.
Intention is a subjective thing and depends on the operation of the individual’s mind, nonetheless, it is possible to make' a finding of intention based on the objective actions of the individual].
The Penal Law defines intentionally as follows: a person acts intentionally with respect to a result or conduct described by a statute to finding [sic] an offense when his conscious objective is to cause such result or to engage in such conduct.
By agreement, I can tell you that people are presumed to intend the natural, probable and logical consequence of their acts.
(Id.; emphasis added.) Twenty-five minutes later the jury returned a verdict of guilty on all counts.
Arroyo perfected his appeal to the Appellate Division in 1977. He argued that, although the portion of the supplemental charge italicized above represented a correct statement of New York law, the presumption language denied him due process of law by nullifying the prosecution’s duty to prove intent and shifting to him the burden of proof on that issue on the attempted murder count. The Appellate Division unanimously affirmed Arroyo’s conviction for attempted murder; it dismissed the remaining four counts because they had merged with the attempted murder count. Leave to appeal to the New York Court of Appeals was denied.
In October 1979, a few months after the United States Supreme Court’s decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, Arroyo pursued his due process claim in New York State Supreme Court by moving pursuant to New York Criminal Procedure Law § 440.10 to vacate the judgment of conviction. The State opposed the motion on the ground that Arroyo’s failure to object at trial to the presumption instruction constituted a forfeiture of the claim. The court rejected this argument, but denied the motion on its merits, on the ground that
in the totality of the entire charge and the detailed instructions to the jury in this case [the presumption language] did not have the same potential for impermissible burden shifting as the instruction struck down by the Supreme Court in [Sandstrom v. Montana, supra].
(Opinion of May 19, 1980 at 14). Leave to appeal to the Appellate Division was denied, thus exhausting Arroyo’s state court remedies.
Arroyo then commenced the present proceeding in the district court, seeking a writ of habeas corpus. In an opinion dated February 11, 1982, the district court ruled that, under Sandstrom v. Montana, supra, the inclusion of the presumption language in the supplemental instruction on intent denied Arroyo due process. The court granted the writ, ordering that the State either release Arroyo from custody or retry him within sixty days. This appeal followed.
DISCUSSION
In Sandstrom v. Montana, which has been the subject of considerable recent discussion in this Court, see, e.g., Ramirez v. Jones, 683 F.2d 712 (2d Cir. 1982); Rivera v. Coombe, 683 F.2d 697 (2d Cir. 1982); Mancuso v. Harris, 677 F.2d 206 (2d Cir. 1982); Nelson v. Scully, 672 F.2d 266 (2d Cir.), cert. denied, - U.S. -, 102 S.Ct. 2301, 73 L.Ed.2d 1304 (1982); Washington v. Harris, 650 F.2d 447 (2d Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 1455, 71 L.Ed.2d 666 (1982), the United States Supreme Court ruled that a jury instruction that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts,” violates the defendant’s right to due process because it tends to shift the burden of proof on the issue of intent to the defendant and to deprive the defendant of the presumption of innocence. In the present case the State does not seriously contend that the portion of the supplemental instruction challenged by Arroyo — “people are presumed to intend the natural, probable and logical consequences of their acts” — is not the same type of instruction found invalid in Sandstrom. Rather, it contends principally that, when read in light of the charge as a whole, as is required by Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), the presumption language did not have the effect of shifting the burden on intent to Arroyo and did not deprive him of the presumption of innocence. We reject the State’s argument. In light of the special prominence of the presumption language by reason of its presence in a supplemental instruction, see Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946), and the series of questions from the jury that preceded it, we cannot conclude that the offending language was “harmless beyond a reasonable doubt,” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
In Nelson v. Scully, supra, we discussed thoroughly the need, in reviewing trial court instructions, not to view the improper language in isolation and to evaluate the charge as a whole, in order to determine whether the improper language “ ‘so infected the entire trial that the resulting conviction violates due process.’ ” 672 F.2d at 272 (quoting Cupp v. Naughten, supra, 414 U.S. at 147, 94 S.Ct. at 400). Nelson and the other cases heretofore considered by this Court in the wake of Sandstrom have dealt with offending language in the body of the court’s principal (or only) charge, rather than in a supplemental charge such as that confronting us here.
A supplemental charge must be viewed in a special light. It will enjoy special prominence in the minds of the jurors for several reasons. First, it will have been the most recent, or among the most recent, bit of instruction they will have heard, and will thus be freshest in their minds. Moreover, it will have been isolated from the other instructions they have heard, thus bringing it into the foreground of their thoughts. Because supplemental instructions are generally brief and are given during a break in the jury’s deliberations, they will be received by the jurors with heightened alertness rather than with the normal attentiveness which may well flag from time to time during a lengthy initial charge. And most importantly, the supplemental charge will normally be accorded special emphasis by the jury because it will generally have been given in response to a question from the jury. The particularly telling impact of a supplemental instruction — and especially the last such instruction — upon a jury was recognized in Bollenbach v. United States, supra, as follows:
The Government suggests that the judge’s misconceived “presumption” was “just what it appears to be — a quite cursory, last minute, instruction on the question of the necessity of knowledge as to the stolen character of the - notes — and nothing more.” But precisely because it was a “last minute instruction” the duty of special care was indicated in replying to a written request for further light on a vital issue by a jury whose foreman reported that they were “hopelessly deadlocked” after they had been out seven hours.... Particularly in a criminal trial, the judge’s last word is apt to be the decisive word. If it is a specific ruling on a vital issue and misleading, the error is not cured by a prior unexceptionable and unilluminating abstract charge.
326 U.S. at 611-12, 66 S.Ct. at 405.
On the record before us there is every reason to believe that the court’s presumption language made a special impression on the jurors. It was the last sentence they heard before returning for their final minutes of deliberation. It was a brief and pointed statement. And, most importantly, it gave them a way to decide the issue that had caused them, first, to ask for an interpretation of the original instructions on attempted murder, second, to ask if a shot at a police officer necessarily evinced an attempt to murder, and third, to ask for “further clarification of the words ‘conscious intent’.” In light of this repeated questioning over the first six and one-half hours of deliberations, and in light of the jury’s decision on the attempt count less than one-half hour after having heard the improper charge, it seems highly likely that the supplemental charge was in the forefront in the jurors’ minds.
In these circumstances, we do not believe the trial court’s initial unobjectionable charge on intent can be deemed to have cured the defective language in the supplemental charge. Since the initial instructions did not mention any presumption as to intent they did not give the jury any assistance in how to apply a presumption— whether they were free to disregard it, whether it was merely something they might infer, or whether the defendant had to overcome it. More importantly, the initial instructions cannot be deemed to have disinfected the later presumption language because the jury’s questions reveal that the initial charge simply was not understood. In short, it is all very well as a general matter for the State to urge us to evaluate the effect of presumption language in light of the charge as a whole. But when the jurors have so little comprehended the unobjectionable initial charge that they have found it necessary to ask three times for clarification, it would be decidedly dense of us to assume that the unobjectionable initial charge, as to which enlightenment was requested, itself enlightened the jury as to the real meaning of the improper enlightenment.
We find no merit in the State’s argument that the supplemental charge was not important because intent was not a hotly debated issue at trial. It is true that intent has been a more prominent issue in cases such as Sandstrom, in which the defendant admitted killing the deceased but pleaded lack of intent due to a mental disorder aggravated by alcohol consumption. Although subtler here, the issue as to intent to murder was highlighted by Arroyo’s testimony that he had merely tried to protect himself by knocking Bernard aside and fleeing, and that he did not remember firing a gun. Thus the trial testimony raised a question as to intent, and the jury’s inquiries during its deliberations reveal that it had substantial uncertainty as to whether the State had proven intent to murder beyond a reasonable doubt.
Nor do we find any of the State’s other arguments more persuasive. For example, in contending that as a practical matter the presumption language probably had little effect, the State states that
[b]y the time the jurors heard this supplemental charge, they had already reached verdicts of guilty on four counts, and on three of those counts they had been required to find that Arroyo acted with a specific intent. Arroyo’s theory that the jurors, who had three times properly found intent from the evidence without resort to a presumption, could have understood the supplemental charge as a direction to ignore the evidence about intent in reaching a verdict on the final count, is simply incredible.
(State’s Reply Brief at 5; emphasis added.) This argument is wide of the mark, for what the sequence of events leads us to infer is not that the presumption language caused the jurors to “ignore the evidence about intent,” but rather that it may have led them to ignore their doubts about that evidence. This argument by the State really amounts to a contention that the jury would not have resorted to the presumption because there was adequate evidence from which it could have found the requisite intent proven. The question, however, is not whether the jury could have convicted on the basis of the evidence without resort to the presumption, but whether we can be sure beyond a reasonable doubt that this is what it did. Sandstrom v. Montana, supra, 442 U.S. at 526, 99 S.Ct. at 2460. Obviously, in light of the jury’s repeated requests for clarification and the relative speed of its decision after receiving the presumption language, “[i]t would indeed be a long jump at guessing to be confident that the jury did not rely on the erroneous ‘presumption’ given them as a guide.” Bollenbach v. United States, supra, 326 U.S. at 614, 66 S.Ct. at 406.
In sum, we agree with the conclusion of the district court that the presumption language of the trial court’s supplemental charge was not harmless beyond a reasonable doubt and that the petition for habeas corpus should be granted.
CONCLUSION
As noted above, the New York Appellate Division, on affirming Arroyo’s conviction for attempted murder, set aside the convictions on the other four charges because they were lesser-included offenses which merged with the attempted murder conviction. The district court’s decision granting habeas corpus was silent as to its effect on these extinguished lesser counts. Although we affirm the decision requiring the State to release or retry Arroyo for attempted murder within sixty days, we modify the order to permit the State to seek in state court the revival of the convictions on any of the four extinguished counts. As thus modified, the order of the district court is affirmed.
. The trial judge’s instruction on intent was as follows:
What is intent; under our law, a person acts intentionally with respect to attempting to cause the death of another person when the alleged perpetrator’s conscious objective is to cause such death. This portion of my charge is concerned itself only with the attempt to commit the crime of murder based on the intention to cause the death of a victim, of course, we all recognize that an intention is a subjective matter and it depends on the operation of an individual’s mind none the less it is possible to make a finding of intention based on objective actions of the alleged perpetrator; in fact, this is the only method that we can use in determining intention since we cannot get into the mind of the alleged perpetrator. Therefore, in your deliberation, you may use the defendant’s objective action as a determining factor in deciding whether or not he acted intentionally.
You may also refer to all the other evidence which may indicate intent or not indicate intent. The Penal Law of the State of New York defines intentionally as follows: a person acts intentionally with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. ■
. Sandstrom v. Montana, supra, was not to be decided for two years, and although following Sandstrom the New York Court of Appeals stated that the law of New York had long held the Sandstrom -type charge to be erroneous as a matter of state law, People v. Thomas, 50 N.Y.2d 467, 472, 429 N.Y.S.2d 584, 407 N.E.2d 430 (1980), there were a number of New York cases upholding similar presumption language, see id. at 474, 429 N.Y.S.2d 584, 407 N.E.2d 430 and cases cited therein (Fuchsberg, J., concurring).
. In light of the state court’s rejection of the State’s procedural argument and its decision on the merits of Arroyo’s due process claim, Arroyo’s failure to object at trial to the presumption language does not bar federal review. Engle v. Isaac, - U.S. -, 102 S.Ct. 1558, 1575 n.44, 71 L.Ed.2d 783 (1982); Washington v. Harris, 650 F.2d 447, 452 (2d Cir. 1981).
. Following the district court’s decision, the parties agreed to a stay of the order pending a decision of this appeal, and Arroyo remains incarcerated.
. In its Brief on Appeal at 13, the State says, “Certainly, it would have been preferable had the trial judge not included the quoted sentence in her instructions. See Sandstrom v. Montana, 442 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39] (1979).”
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
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sc_lcdisagreement
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
STEELE v. GENERAL MILLS, INC.
No. 79.
Argued December 18, 1946.
Decided January 6, 1947.
Cecil A. Morgan argued the cause for petitioner. With him on the brief was T. S. Christopher.
Alfred McKnight argued the cause for respondent. With him on the brief were Charles E. France and Ira Butler.
By special leave of Court, Elton M. Hyder argued the cause for the State of Texas as amicus curiae.
Me. Justice Black
delivered the opinion of the Court.
Petitioner and respondent entered, in to a written contract under which the petitioner was to transport goods for respondent by truck entirely within the State of Texas at “such rates, charges or tariffs as may be fixed by the Railroad Commission of the State of Texas.” Based on that contract petitioner applied to the Commission for a permit to operate as a contract carrier pursuant to rules of the Railroad Commission promulgated under Texas law which grants regulatory power over transportation to that Commission. Article 911b, §§ 1 to 22 (b), Rev. Stat. of Tex. Petitioner’s application stated that “the tariff to be charged for the service proposed to be rendered will be that as promulgated by the Railroad Commission of Texas.” After notice and hearing, at which petitioner and a representative of respondent testified, the Commission made an order which stated that “after carefully considering the evidence, the laws and its own rules and regulations,” the Commission was of the opinion that “the character of business proposed to be done by the applicant strictly conforms with the definition of a contract carrier.” The order directed that petitioner be granted a permit, which was later issued, to transport goods for respondent in Texas, but directed attention to the fact that the Commission’s “tariffs and orders prescribed as a minimum rate to be charged by contract carriers the rates prescribed for common carrier motor carriers.” Later, pursuant to a prearrangement, the parties entered into a supplemental agreement concerning which the Railroad Commission was kept uninformed, in accordance with which respondent actually paid petitioner for carriage of its goods less than the rates prescribed for common motor carriers. About three and a half years later the petitioner filed this suit, of which the District Court had jurisdiction by reason of diversity of citizenship, to recover the difference between the rate paid and the full rate fixed by prior general orders of the Commission prescribing common carrier rates as provided in the contract.
The respondent’s answer admitted that it had paid less than the tariff rate fixed in prior general orders, but denied legal liability to pay that rate on several grounds. It denied that respondent’s rates were governed by the Commission’s prior general rate orders or by the special order granting petitioner a permit as a contract carrier. It also claimed that a state two-year statute of limitations barred recovery for part of the amount claimed. It further alleged that petitioner had led respondent to believe that his type of transportation was not subject to regulation by the Railroad Commission, and that no prior general or special orders had fixed petitioner’s transportation rates. In reliance upon the petitioner’s representations, respondent alleged, it had entered into the supplemental agreement to pay less than the tariff rate here claimed. Respondent pleaded that by this conduct petitioner was estopped from claiming that the Commission had power to or had fixed a rate for petitioner’s transportation, or from predicating his cause of action upon the Commission’s tariffs.
The District Court rejected all of respondent’s contentions. Citing Texas statutes, court decisions, and the Commission’s practices, the District Court held that the cause of action was not barred by the statute of limitations; that the Commission’s prior general rate orders governed the charges to be fixed by contract carriers such as petitioner; that Texas law barred respondent from any collateral attack on the validity of the orders; that had the rate-fixing orders been directly attacked, as authorized by law, they would have been held valid; that shippers and carriers could not by private agreements defeat the State’s statutory purpose to require payments of uniform transportation rates; that the original agreement to pay the Commission-fixed rate was valid, and the supplemental agreement to pay less than that rate was void; and that, under Texas law, petitioner was not estopped to rely on the Commission’s tariff in order to recover the full tariff rate. Accordingly, the District Court directed the jury to return a verdict for petitioner for the balance due it under the Commission rate, and a judgment for the petitioner was entered on that verdict.
The Circuit Court of Appeals, one judge dissenting, reversed. 154 F. 2d 367. The majority concluded that petitioner should not recover because the agreement to pay less than the full rates was a subterfuge, that neither party had any intention of living up to the agreement, and that their conduct amounted to a fraud upon the Railroad Commission, “contrary to good morals and that [it] tended ... to interfere with the purity of the administration of the law such as puts both parties in pari delicto with no right to seek advantage or recovery . . .” on the “spurious” contract. The dissenting judge did not agree that the records showed a deliberate purpose to evade the statutes. He further thought that under controlling Texas law and policy the doctrine of pari delicto could not be applied so as to have the goods of a Texas shipper hauled in Texas at a less rate than the others were compelled to pay by law. All the judges agreed, however, that the agreement to pay less than the Commission-fixed rates was void.
On petitioner’s motion for rehearing, the State Attorney General intervened. He contended that the court’s decision ran counter to the State’s long-established policy against discriminatory transportation rate-cutting, and that if the judgment stood, it would impair the integrity of the State’s regulatory system, a primary purpose of which was, he argued, to assure uniform rates to all shippers for substantially the same transportation service. In its opinion denying rehearing, the court reaffirmed its former holding and stated that this was “a suit by one party, in particeps criminis, against another in like situation, under a fully completed contract, wherein it was sought to penalize one party to the extent of $37,000.00 and to reward the prime offender in like amount.” Whether the Circuit Court of Appeals’ judgment does undermine the transportation policy of Texas is a question of such importance that we granted certiorari to review the case. 328 U. S. 830.
The District Court specifically held that no part of the claim sued on was barred by the Texas statute of limitations and the Circuit Court of Appeals did not discuss the question. Article 5526 of the Revised Statutes of Texas, on which respondent relies, by its language applies only to actions for debts not “evidenced by a contract in writing.” The contract here sued on was “in writing.” Respondent has cited no Texas decisions which have considered this statute to be a bar to suits on contracts such as the one here involved. We cannot say that the District Court sitting in Texas erred in holding that no part of the claim was barred by Article 5526. See Texarkana & Ft. S. R. Co. v. Houston Gas & Fuel Co., 121 Tex. 594, 51 S. W. 2d 284.
Nor can we say that the District Court and the Circuit Court of Appeals erred in interpreting Texas law to render the supplemental agreement between petitioner and respondent, designed to circumvent payment of Commission-fixed rates, void and unenforceable. The District Court’s holdings that the Commission’s rate-fixing orders applied to petitioner’s business, that they were not subject under Texas law to the collateral attack here made, and that petitioner could not carry respondent’s goods at less than the rates fixed were well buttressed by state statutes and court decisions. No arguments here made by respondent, or state decisions on which it relies, refute the District Court’s reasoning or conclusion. The Circuit Court of Appeals has not disagreed with this holding-of the District Court sitting in Texas. Under these circumstances we shall leave undisturbed the interpretation placed upon purely local law by a Texas federal judge. MacGregor v. State Mutual Life Assurance Co., 315 U. S. 280; Henderson Co. v. Thompson, 300 U. S. 258, 266; Thompson v. Consolidated Gas Co., 300 U. S. 55, 74-75. Therefore we can proceed to consider whether the Circuit Court erred in holding that respondent could escape payment of the Commission-fixed rates by application of the doctrine of pari delicto.
Respondent does not refute what the Texas courts have frequently decided, that agreements by railroads to cut charges to below tariff rates are unlawful and that no doctrine of estoppel or pari delicto can be invoked to defeat payment of the full tariff rate. In Texas & N. O. R. Co. v. Yates, 139 Tex. 89, 93, 161 S. W. 2d 1050, 1052, the Texas court said, “In a word the purpose of our statutes, as they relate to intrastate freight rates, is in every essential respect the same as that of the Federal statutes which we had under consideration in Houston & T. C. R. Co. v. Johnson, Tex. Com. App., 41 S. W. 2d 14, 83 A. L. R. 241.” Just as 49 U. S. C. § 41 (3) prohibits rebate and similar devices which might undermine interstate transportation rate systems, so Art. 1690 (b), § (i) of the Penal Code of Texas makes it unlawful for motor carriers to charge less than Commission-fixed rates, and Art. 1687 makes it unlawful for railroads to engage in the same practice. No Texas decisions referred to by the Circuit Court of Appeals or by the respondent here indicate that the State’s public policy is any different or less effective in protecting the integrity of motor carrier rates than railroad rates. The Texas motor carrier legislation was designed to be a part of a state transportation regulatory system applicable alike to all lines of transportation which represents a “studied effort ... to prevent, through regulation, unfair, discriminatory, or destructive competition between such authorized carriers as would ultimately impair their usefulness.” Texas & Pacific R. Co. v. Railroad Comm’n (Tex. Civ. App.) 138 S. W. 2d 927, 931, reversed on other grounds, 138 Tex. 148, 157 S. W. 2d 622. Cf. Stephenson v. Binford, 287 U. S. 251, 272-273.
Under Texas law the payment of Commission-fixed carrier rates is not merely a private obligation between shippers and carriers. The duty to pay is a public one, Houston & T. C. R. Co. v. Johnson (Tex. Com. App.) 41 S. W. 2d 14. And, as said in the Yates case, supra, with reference to a railroad, no carrier can “by means of estoppel ‘or by any other device’ escape the performance of this public duty.” While the doctrine of pari delicto might be applied in Texas to some types of contracts so as to defeat recovery, see Wright v. Wight & Wight (Tex. Civ. App.) 229 S. W. 881, we are satisfied that the Circuit Court of Appeals erred in holding that Texas courts would apply it in this case. Application of the doctrine of pari delicto in this proceeding, therefore, where the federal court has jurisdiction by reason of diversity, would result in applying a rule of law in the federal courts different from the rule we believe has been applicable in the state courts. Such a result cannot be approved. Holmberg v. Armbrecht, 327 U. S. 392.
The judgment of the Circuit Court of Appeals is reversed and that of the District Court is affirmed. It is so ordered.
Reversed.
The court permitted respondent to offer evidence intended to show that the petitioner’s contract carriage was neither in competition with common carriers nor substantially the same type of services as common carriers performed. This evidence was offered to support respondent’s contention that the Commission was without jurisdiction to fix petitioner’s rates because, as respondent urged, § 6 aa of the State motor carrier law limited its power to fix contract carrier rates to motor carriers that did compete with or perform substantially the same services as common carriers. These two questions were submitted to the jury, and they made special findings on the issues in respondent’s favor. The district court later directed the jury to find for petitioner despite these findings, holding, as set out in the opinion, that the Commission’s orders were valid and beyond collateral attack in this case.
The District Court cited the following authorities to support its position: Art. 911b Rev. Stat. of Tex.; General Order No. 25, R. R. Comin’n of Tex., Aug. 22,1931; Texas Steel Co. v. Ft. Worth & Denver C. R. Co., 120 Tex. 597, 40 S. W. 2d 78; Greer v. Railroad Comm’n (Tex. Civ. App.) 117 S. W. 2d 142; St. Louis, I. M. & S. R. Co. v. Landa & Storey (Tex. Civ. App.) 187 S. W. 358; Railroad Comm'n v. Uvalde Construction Co. (Tex. Civ. App.) 49 S. W. 2d 1113; Alpha Petroleutn Co. v. Terrell, 122 Tex. 257, 59 S. W. 2d 364; Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084. It also cited the following federal cases: Burford v. Sun Oil Co., 319 U. S. 315; United Fuel Gas Co. v. Railroad Comm’n, 278 U. S. 300.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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songer_direct1
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
In re MT. FOREST FUR FARMS OF AMERICA, Inc. GULF REFINING CO. OF LOUISIANA et al. v. FITZGERALD. COCKRELL et al. v. FITZGERALD (two cases).
Nos. 8802-8808, 8614, 8894.
Circuit Court of Appeals, Sixth Circuit.
Aug. 16, 1941.
Butzel, Eaman, Long, Gust & Bills, of Detroit, Mich. (Frank D. Eaman and Victor W. Klein, both of Detroit, Mich., J. S. Atkinson, of Shreveport, La., Tinsley Gil-mer, of Lake Charles, La., and George C. Schoenberger, Jr., of Houston, Tex., of counsel), for Gulf Refining Co. of Louisiana and others.
Monroe & Lemann, of New Orleans, La., Butzel, Levin & Winston, of Detroit, Mich., and Battle, Levy, Fowler & Nea-man, of New York City (Monte M. Le-mann, of New Orleans, La., A. J. Levin, of Detroit, Mich., George Gordon Battle, of New York City, J. Blanc Monroe, of New Orleans, La., Henry H. Sills, of Detroit, Mich., Walter J. Suthon, Jr,, of New Orleans, La., and Pearson E. Neaman, of New York City, of counsel), for Freeport Sul-phur Co.
Oxtoby, Robison & Hull, of. Detroit, Mich., and Herold, Cousin & Herold, of Shreveport, La. (Oscar C. Hull and Leo I. Franklin, both of Detroit, Mich., and Samuel L. Herold, Jr., and Sidney L. Herold, both of Shreveport, La., of counsel), for Ernest Cockrell.
Robert S. Marx, Carl Runge, Lawrence I. Levi, and Julian G. McIntosh, all of Detroit, Mich., Lazarus, Weil & Lazarus and Cobb & Saunders, all of New Orleans, La., Fraser, Effler, Shumaker & Winn, of Toledo, Ohio (Eldon S. Lazarus and Eugene D. Saunders, both of New Orleans, La., Ross W. Shumaker and Robert C. Dunn, both of Toledo, Ohio, Charles S. Abbott, of Ann Arbor, Mich., and Nichols, Wood, Marx & Ginter, of Cincinnati, Ohio, of counsel), for trustee, Frank Fitzgerald.
Before HICKS, HAMILTON, and MARTIN, Circuit Judges.
MARTIN, Circuit Judge.
This complicated litigation, involving millions of dollars, has been heard on the consolidated argument of nine cases and reaches us on appeal, in summary proceedings in a corporate reorganization in bankruptcy, in causes 8802-8808 from a judgment of the District Court for the Eastern District of Michigan against six appellants, Gulf Refining Company of Louisiana, Gulf Refining Company, Humble Oil and Refining Company, Shell Oil Company, Inc., Freeport Sulphur Company, all corporations, and Ernest Cockrell; on appeal from an interlocutory injunction in 8614, restraining appellants Ernest Cockrell, his curator ad hoc, and their attorneys, from further proceedings in a suit pending in the 25th Judicial District Court for the Parish of Plaquemines, State of Louisiana;' and on appeal from an interlocutory injunction in 8894, restraining appellants Ernest Cockrell and two Louisiana law firms, Herold, Cousin & Herold, and Plauche & Plauche, and also the Moran Corporation of the South and Isaac E. Heller, who are not appellants, from taking any further steps in another suit pending in the same Louisiana Judicial District Court.
The appellee, Frank Fitzgerald, trustee for Mt. Forest Fur Farms of America, Inc., the corporate debtor, appealed in the main case (8802-8808 consolidated) from that portion of the judgment which denied the full relief sought; but, for brevity and clarity, will be designated only as appellee.
On July 16, 1926, a corporation, Mt. Forest Fur Farm, was created under the laws of Michigan for the purpose of owning and operating fur and game farms in Michigan and elsewhere in the United States and in Canada and of manufacturing and dealing in furs and fur garments, including the right to deal in real estate in furtherance of its charter purposes. On March 29, 1928, this Michigan corporation sold its properties and assets to the debtor, Mt. Forest Fur Farms of America, Inc., incorporated under the laws of Delaware with like charter powers. The consideration received for this conveyance was stock of the new corporation and the assumption by it of all contracts and liabilities of the vendor. See Morlock v. Mount Forest Fur Farms of America, Inc., 269 Mich. 549, 257 N.W. 880. On September 28, 1928, Mt. Forest Fur Farm executed a deed to Mt. Forest Fur Farms of America, Inc., conveying the Louisiana land which is the subject matter of the present controversy.
Before the debtor corporation was created, Mt. Forest Fur Farm, after considerable negotiation, entered into a written agreement with appellant Ernest Cockrell, an oil operator, to purchase, for a consideration of two dollars per acre, approximately 53,000 acres of land situated on the west side of the Mississippi River in Plaquemines Parish, Louisiana. This contract of sale contained a perpetual reservation in Cockrell of “one-eighth of all minerals, including oil, gas and sulphur, which may be found in, under and upon said land.”
Earnest money was paid and, after much wrangling between the parties, during which Cockrell threatened to call the deal off unless a required first payment of purchase money was made by a specified date, a deed to 127/150ths’ interest in the land, described by townships and sections in Pla-quemines Parish, Louisiana, as containing 52,500 acres, more or less, was executed by Cockrell to Mt. Forest Fur Farm on April 11, 1927, and recorded the following day. This deed contained an ambiguous mineral reservation. The consideration, paid partly in cash and partly by the delivery of one promissory note and the assumption of another, totaled $88,900 for Cockrell’s 127/150ths’ undivided interest in the land.
The other 23/150ths' undivided interest, owned by the Moran Corporation of the South, was acquired by Mt. Forest Fur Farm on June 30, 1928, by a deed of conveyance unquestionably reserving in the vendor all mineral rights.
Obvious ambiguity in the mineral reservation clause of the deed from appellant Cockrell to Mt. Forest Fur Farm is the fundamental casus belli in the instant case.
We quote the much-mooted language: “This Vendor is vested with and specially retains for himself, his heirs and assigns, and reserves from this sale, a perpetual royalty equal to one-eighth of all minerals, including oil, gas and sulphur, which may be found in, under, upon or beneath the lands herein above described, together with perpetual and exclusive rights to make and execute mineral leases on all or any portion of said lands for the exploration, development, production and marketing of any and all of said minerals, and also including perpetual rights of ingress and egress solely for said purpose of exploration, development, production and marketing of said minerals, at all times, and likewise the use of so much of the surface of said premises as may be found necessary and convenient for the exploration, development, production and marketing of said minerals which may be found and produced from said premises.”
This reservation has been construed by the Supreme Court of Louisiana, which, adversely to the contention made by Mt. Forest Fur Farms, Inc., plaintiff in a suit brought in Louisiana to recover bonus money amounting to $50,000 which Cockrell received from the Gulf Refining Company for granting and extending a mineral lease, held that by virtue of the above quoted clause in his deed to Mount Forest Fur Farm, Cockrell had retained the perpetual and exclusive right to make and execute mineral leases on all or any portion of the land; that he had retained not merely the right to select the lessee and to fix the terms of the lease, and to lease as agent, but also the right to lease for his own benefit and that of his heirs and assigns “save as otherwise expressed” in the reservation; and that he was entitled to “all that the lease might bring, save as therein specified.” Accordingly, denying the claim of Mt. Forest Fur Farms, the court affirmed a judgment awarding Cockrell the bonus money. But the court announced that it was not concerned with the right to the royalties from the lease. Mt. Forest Fur Farms of America, Inc. v. Cockrell, 179 La. 795, 155 So. 228, 229.
If we have jurisdiction, this undecided issue, inter alia, must be decided here; if we have not, a court of competent jurisdiction should be the forum.
The lease from Cockrell of all mineral rights in the land to Gulf Refining Company of Louisiana was dated March 15, 1928; and, subsequently, on May 7, 1928, Roxana Petroleum Corporation (now appellant Shell Oil Company, Inc.) acquired from the Moran Corporation of the South a mineral lease on the remaining 23/150ths’ interest in the 52,500 approximate acreage. On July 18, 1928, Roxana Petroleum Corporation and appellant Humble Oil and Refining Company obtained from the State of Louisiana, through its Governor, Huey P. Long, a lease of the mineral rights on the bed of Lake Grand Ecaille. By contract of October 8, 1929, appellants Humble Oil and Refining Company, Gulf Refining Company of Louisiana and Shell Oil Company, Inc. (which had succeeded Roxana), agreed to develop and operate jointly all mineral leases owned by them or subsequently acquired in an area which embraced the 52,-500 acre tract. On February 10, 1932, appellant Freeport Sulphur Company subleased from the three oil companies all their rights and privileges under their respective leases to explore for, mine, produce and market sulphur.
After the discovery of oil on the property, the Board of Commissioners for Buras Levee District filed suit claiming title to 1,136 acres of the land. Mt. Forest Fur Farms of America, Inc., the Moran Corporation of the South, the -three oil companies, and Ernest Cockrell ’were named as defendants; and, after a vigorous defense, succeeded in winning a four to three decision in the Supreme Court of Louisiana, rejecting the claims of the Levee Board. Board of Commissioners for Buras Levee District v. Mt. Forest Fur Farms of America, Inc., 178 La. 696, 152 So. 497.
But the Levee Board persisted in making claim to other portions of the realty. Cock-rell countered by filing a declaratory judgment suit in the Federal Court which resulted in a decision that the judgment of the Louisiana Supreme Court in the Buras Levee Board suit was res adjudicata.only as to the 1,136 acres there in controversy and that the title-claim of the Buras Board to the remaining portion of the land had not been adjudicated. Board of Com’rs for Buras Levee Dist. v. Cockrell, 5 Cir., 91 F.2d 412.
In consequence of this decision, the oil companies, the sulphur company and Cock-rell, under advice of counsel, compromised the adverse claims of the Levee Board and other intertwined claimants. More than $475,000 has been paid to the Levee Board, its assignees, and the holders of over-riding royalty agreements under these compromise settlements. Appellants are presently paying royalties on their consolidated leases from the Levee Board.
In the summer of 1929, the oil companies drilled for oil and produced it in paying quantities in June, 1931. Since then, their production of oil from the premises in controversy has been continuous. Likewise, the sulphur company has continuously produced sulphur since December, 1933. The operations of the mineral lessees will be detailed later in this opinion.
At no time has either the debtor corporation or its predecessor, Mt. Forest Fur Farm, ever attempted to prospect the land, or produce oil, sulphur, or minerals therefrom. The use and occupancy of the property by these successive owners has been limited exclusively to fur gathering purposes.
Due to its default on contracts with many persons for the breeding of muskrats, Mt. Forest Fur Farms of America, Inc., on August 21, 1931, consented to receivership in a stockholders’ suit in chancery in the Circuit Court for Wayne County, Michigan. The receiver took charge and carried on the business of trapping on the company’s Louisiana, property until abandonment of this enterprise in the early part of 1932.
An involuntary creditors’ petition for reorganization of the debtor under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, was filed and allowed in the United States District Court. On appeal, the district court order approving the petition for reorganization was reversed and the cause remanded. Mount Forest Fur Farms of America, Inc. v. Farnsworth, 6 Cir., 92 F.2d 342.
■ A voluntary petition of the debtor for reorganization under Section 77B ensued and was approved by the district court, whose orders approving the petition, overruling creditors’ motion to dismiss, and appointing Frank Fitzgerald, trustee, were affirmed on appeal. In re Mt. Forest Fur Farms of America, Inc., 6 Cir., April 5, 1939, 103 F.2d 69.
Shortly after his appointment as temporary trustee, appellee obtained a show-cause order against which appellants filed motions to quash on jurisdictional grounds. No ruling was made upon the motions. On January 4, 1940, appellee Fitzgerald, then and now permanent trustee, filed an amended petition upon which he obtained an order to show cause why appellants should not be enjoined from exploring, drilling, mining, selling, moving, or otherwise appropriating oil, gas, sulphur and other minerals from the debtor’s property in Louisiana; or, in the alternative, why appellants should not be directed to pay unto the petitioning debtor the royalties theretofore accrued or thereafter accruing for oil, gas, sulphur and other minerals already removed, or which might thereafter be removed, if it should be made to appear that appellants have the right to extract the minerals but have failed in the discharge of their legal obligation to pay the royalties due thereon.
Seasonably to the return day of the show-cause order, appellants, entering only special appearances, filed motions to quash and to dismiss the summary proceedings against them, averring that the court had no jurisdiction to enter the show-cause order of January 4, 1940.
These motions to quash and to dismiss presented elaborately the basis of objection of appellants to the jurisdiction. However, after hearing a two days’ argument, the district court entered an order postponing disposition of the motions until the trial on the merits. Finally, after hearing all the evidence in the case, the motions to quash and to dismiss the summary proceedings were denied. The alternative motions of appellants for a stay of the proceedings and for a reference of the issues to the Louisiana State Courts for determination were likewise denied.
The trustee for the debtor corporation, moreover, prevailed upon the merits. The determinative adjudications of the district court were, as follows:
(1) The interests of appellants under ■ the lease from Cockrell to the Gulf Refining Company of Louisiana were limited to one-eighth of 127/lSOths of the minerals in controversy, and the debtor was vested with the other seven-eighths therein.
(2) Appellant, Freeport Sulphur Company, must account to the trustee for the debtor, on the basis of the proceeds from seven-eighths of 127/150ths of the sulphur produced (less the cost of production and a reasonable profit), for the minerals removed from August 23, 1938 (the date of the original petition and show-cause order), to date.
(3) Likewise, appellant, Humble Oil and Refining Company (the operating company under the agreement among the appellant oil companies), must account to the trustee for the proceeds of seven-eighths of 127/150ths of the oil produced, less the cost of production and a reasonable profit.
(4) Should appellant, Freeport Sulphur Company, whose operations were expressly conditioned in the decree, continue to produce sulphur from the land and should appellant, Humble Oil and Refining Company, continue to produce oil, each shall respectively account to the trustee for seven-eighths of 127/150ths of the sulphur and oil produced, less the cost of production and a reasonable profit to be subsequently determined.
(5) A hearing was ordered to be held to ascertain such cost of production and reasonable profits and the amounts now due or hereafter to become due from the production of oil and sulphur, pending which hearing the above-named appellants shall pay into the registry of the court, for future disposition by court order, four dollars a ton on all sulphur and ten cents a barrel on all oil thereafter produced from the entire mineral interest in all the property.
(6) Upon failure of the two above-named appellants- to pay the amounts specified in the preceding paragraph, each shall be restrained and enjoined from further production of sulphur and oil on the property.
Cases 8802-8808 are here on appeal from the judgment and decree of the district court, both upon the merits and upon the jurisdictional motions and the motions to stay and to refer the issues to the courts of Louisiana.
Case 8614 is before us on appeal from the interlocutory injunction, restraining further steps or proceedings by appellants in suit entitled Mt. Forest Fur Farms of America, Inc., v. Ernest Cockrell, et al. [No. 1190], instituted March 30, 1936, by the debtor corporation concerning similar subject matter to that embraced in cases 8802-8808 and now pending in the 25th Judicial District Court for the Parish of Plaquemines, Louisiana. Appellants challenged the jurisdiction of the United States District Court to issue the injunction.
Likewise, consideration of case 8894 presents in the first instance the question of jurisdiction involved in cases 8802-8808. The appeal is from an interlocutory injunction, restraining further steps by appellant Cockrell and the law firms of Herold, Cousin & Herold, and Plauche & Plauche, all appellants, and the Moran Corporation of the South and Isaac E. Heller, in a pending suit entitled Ernest Cockrell, et al. v. Moran Corporation of the South, et al. [No. 1603], filed October 14, 1940, in the 25th Judicial District Court for Plaquemines Parish, Louisiana. In its decree, the court below recited that the subject matter in the pending Louisiana case [No. 1603] is substantially identical with the issues adjudged in cases 8802-8808.
Manifestly, if the district court lacked jurisdiction in cases 8802-8808, the interlocutory injunctions in cases 8614 and 8894 were improvidently granted.
In all these appealed cases, we confront at the threshold the question whether the district court had jurisdiction to enter the show-cause orders. If a negative answer is impelled by applicable law, there should be no further adjudication here.
(1) The challenged jurisdiction must be resolved, not by a test of title, but by determination of the issues of possession of the res in controversy as of the time reorganization proceedings were instituted by the debtor corporation.
No jurisdiction vests in a court, of bankruptcy to adjudicate, in a summary proceeding, a controversy over property held adversely to the bankrupt estate, except by consent of the adverse claimant, or where the adverse claim is merely color-able. Unless summary jurisdiction exists, the trustee in bankruptcy must resort to plenary suit. Harrison v. Chamberlin, 271 U.S. 191, 46 S.Ct. 467, 70 L.Ed. 897; In re Cadillac Brewing Co., 6 Cir., 102 F.2d 369. Compare First National Bank v. Chicago Title & Trust Co., 198 U.S. 280, 25 S.Ct. 693, 49 L.Ed. 1051.
The Supreme Court, while recognizing in Taubel, etc., Co., v. Fox, 264 U.S. 426, 44 S.Ct. 396, 68 L.Ed. 770, the power of Congress to determine the extent of the exercise of bankruptcy jurisdiction by summary proceeding in Federal Courts through possession of the res or otherwise, held that no summary jurisdiction to adjudicate the validity of a substantial adverse claim to property not in possession of the Federal Court, except by consent of the adverse claimant, had been conferred by the Bankruptcy Act of 1898, 11 U.S.C.A. § 1 et seq. Mr. Justice Brandéis stated (264 U.S. at page 433, 434, 44 S.Ct. at page 399) : “As every court must have power to determine, in the first instance, whether it has jurisdiction to proceed, the bankruptcy court has, in every case, jurisdiction to determine whether it has possession actual or constructive. It may conclude, where it lacks actual possession, that the physical possession held by some other persons is of such a nature that the property is constructively within the possession of the court. * * * But in no case where it lacked possession, could the bankruptcy court, under the law as originally enacted, nor can it now (without consent) adjudicate in a summary proceeding the validity of a substantial adverse claim.” Cf. First National Bank of Negaunee v. Fox, 6 Cir., 111 F.2d 810.
It was reasserted in Harris v. Brundage Co., 305 U.S. 160, 59 S.Ct. 131, 83 L.Ed. 100, that in every case the bankruptcy court has power, in the first instance, to determine whether it has such actual or constructive possession as is essential to procedural jurisdiction, and to determine controversies relating to property in possession of agents of the debtor at the time of the filing of the petition in bankruptcy.
In a recent case, Thompson v. Magnolia Petroleum Company, 309 U.S. 478, 481, 60 S.Ct. 628, 630, 84 L.Ed. 876, the Supreme Court said: “Bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession. And the test of this jurisdiction is not title in but possession by the bankrupt at the time of the filing of the petition in bankruptcy.”
The rule, that if ownership is claimed by the bankrupt all property in his possession at the time of the filing of the petition in bankruptcy passes into the custody o-f the bankruptcy court, has been applied to a railroad reorganization under Section 77 of the Bankruptcy Act, as amended March 3, 1933, c. 204, Sec. 1, 47 Stat. 1474, 11 U.S.C.A. § 203 note. But the right of the court to issue injunctions and all writs necessary to protect its physical possession from interference was predicated upon possession of the res. Ex parte Baldwin, 291 U.S. 610, 615, 54 S.Ct. 551, 78 L.Ed. 1020.
Appellee has made the point that in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island Ry., 294 U.S. 648, 55 S.Ct. 595,79 L.Ed. 1110, which sustained the constitutionality of Section 77 of the Bankruptcy Act, the highest court maintained the power of a bankruptcy court to issue, in a summary proceeding, injunctive process to prevent interference with a plan of railroad reorganization. The opinion, however, does not gainsay the principle that jurisdiction in a summary proceeding rests upon actual or constructive possession of the res. No adverse claim by one in possession was involved and the asserted liens were not disputed. The power of a district court to issue process for service outside the district, pursuant to Section 77(a), was upheld.
A provision similar to that contained in Section 77(a) will be found in Chapter X, § 111, of the Chandler Act, 11 U.S.C.A., § 511: “Where not inconsistent with the provisions of this chapter, the court in which a petition is filed shall, for the purposes of this chapter, have exclusive jurisdiction of the debtor and its property, wherever located.”
Neither exclusive jurisdiction of the debtor nor power to issue process outside the district confers upon the bankruptcy court the power, in a summary proceeding, to decide, without the consent of an adverse claimant, a controversy concerning property in his possession, unless his claim be merely colorable. Were it otherwise, every bona fide possessor of property held adversely to a bankrupt could be haled into a distant Federal Court to defend his right to the property whenever the trustee in a reorganization proceeding should choose to corral him summarily.
No such unreasonable election may be deduced from the language of the statute, or from the authorities which have been considered.
(2) Does the res in controversy here consist of mineral rights or servitudes susceptible of separate ownership and possession apart from the ownership and possession of the surface of land?
Does the exercise of a mineral right or servitude by extracting and actually possessing the minerals from land constitute possession of the right or servitude?
To determine the issue of jurisdiction, these questions must be answered in accordance with Louisiana law. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. The highest state court is the final authority on state law. Fidelity Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109. We must, therefore, carefully study the opinions of the Supreme Court of Louisiana.
It has long been settled law in Louisiana that oil and gas in place are not subject to absolute ownership as specific things apart from the soil of which they form part, and that a grant or reservation of such oil and gas carries only the right to extract such minerals from the soil. Frost-Johnson Lumber Co. v. Sailing’s Heirs, 150 La. 756, 91 So. 207, 242, citing eight earlier Louisiana decisions. The court said: “ * * * No matter what the intention of the parties be, the owner of lands cannot convey or reserve the ownership of the oils, gases, and waters therein apart from the land in which they lie; and we so hold, because the owner himself has no absolute property in such oils, gases, and waters, but only the right to draw them through the soil and thereby become the owner of them.” 150 La. at page 863, 91 So. at page 245.
In Wemple v. Nabors Oil & Gas Co., 154 La. 483, 97 So. 666, the court declared that there are only two kinds of estates in land: (1) corporeal, termed ownership [Civil Code, Art. 505] and (2) incorporeal, termed servitude [Civil Code, Arts. 533, 646, 647]; and that mineral servitudes grant merely the right to extract and appropriate minerals. Decision of the case, which was a civil action by a landowner for slander of title, was grounded, however, upon the failure of one who had acquired mineral rights from a prior owner to explore for minerals within the required ten years’ prescription period. We find nowhere in the opinion an intimation that the right of a person entitled to a mineral servitude to possess the same through exercise should be denied.
Appellee places what seems to us insecure dependence upon Federal Land Bank of New Orleans v. Mulhern, 180 La. 627, 157 So. 370, 95 A.L.R. 948. The defendant had mortgaged real property to the plaintiff. Subsequently, he entered into a mineral lease with a third party, who drilled and brought in a gas well. A foreclosure suit, brought by the mortgagee, was sustained upon the ground that either partial or total exhaustion of the gas supply would impair “the real right to take gas from the land,” and would necessarily depreciate the security of the mortgage. The emphatic fact was that the mortgage antedated the mineral lease. Appellee stresses the following language of the original opinion: “While the owner of land does not own the fugitive minerals, such as oil and gas, beneath its surface, but only the right to reduce them to possession and ownership, and while such minerals are not susceptible of ownership apart from the land [citing Frost-Johnson Lumber Co. v. Sailing’s Heirs, supra], yet those minerals, while in place in the ground beneath the surface, unsevered, are real estate, a part of the land itself, a part of the realty, as much so as timber, coal, iron, and salt.” 180 La. at page 634, 157 So. at page 373.
But, on rehearing, the court explained: “What the court intended to state was, that the owner of real estate unquestionably has a right to go on his land and reduce to possession fugitive minerals, in order to gain complete ownership thereof. He can therefore contract away to another, in the form of a mineral or mining lease, this real right.”
Appellee leans heavily upon a case decided fifteen years ago, Exchange National Bank of Shreveport v. Head, 155 La. 309, 99 So. 272, 274.
The facts were that a mortgage creditor began a foreclosure proceeding in the state court, pending which the mortgagor (Shields) was adjudged bankrupt. The mortgagee dismissed his state court action and proved his debt in bankruptcy. The property of the bankrupt was ordered sold, free of all liens and incumbrances; the mortgagee purchased the mortgaged land at the bankruptcy sale, and instituted suit in the state court against the mineral lessee (Head) for cancellation of the mineral lease from the public records.
The mortgagee (the Exchange National Bank) prevailed. It was held that, though the mineral lease had been executed before the mortgage, prior recordation of the mortgage entitled the trustee in bankruptcy, being vested with all rights of the mortgage creditor, to sell the land free of the rights of the mineral lessee (Head).
Certain dicta in the opinion of. the Supreme Court of Louisiana is stressed by appellee: “ * * * The only right which was conveyed by Shields to Head under the oil lease was a right of servitude (an incorporeal right), a real right on the land, a right to extract the oil and utilize the gas from the land, and when Shields surrendered the land in bankruptcy, this real right (this servitude) went with the land into the possession of the trustee in bankruptcy and likewise the possession of the land, for as we have already seen (Nabors Oil & Gas Co. v. Louisiana Oil & Refining Co., supra [151 La. 361, 91 So. 765]), the lessee under an oil and gas lease cannot deny or contest the right of possession of his lessor.”
The opinion writer in the Head case, in citing Nabors Oil & Gas. Co., supra, evidently did not recall that on rehearing of the Nabors case [151 La. 361, 91 So. 778]; the court had said: “A majority of the members of this court did not concur in the expressions in the opinion originally handed down in this case. * * * the doctrine that an ordinary lessee, as of a house or farm, cannot dispute the title of his lessor during the term of the lease, has no application to a contract by which a person acquires mineral rights, in the form or name of a contract of lease. Such a contract, in that respect, is more like a sale than an ordinary lease.”
Nor can the obiter dicta in the Head case be reconciled with later decisions: Bodcaw Lumber Co. of Louisiana v. Cox, infra, and Connell v. Muslow Oil Co., infra.
It was held in Bodcaw Lumber Co. of Louisiana v. Cox, 159 La. 810, 106 So. 313, 314, that a sale of land for taxes does not divest the reservation of a prior mineral servitude. The court said that in all cases cited “in which it was held that oil and gas beneath the surface is not subject to ownership, as corporeal property, it was plainly and distinctly held that the grant or reservation of the oils and gases carried with it the right to extract such minerals from the soil; that such right was an incorporeal right — a real right or servitude.” It was further declared that “when the plaintiff reserved the oil, gas, and minerals under the land sold, it reserved the right to mine for such minerals and to reduce them to possession, and, this being a real, incorporeal right, the plaintiff unquestionably has a standing in court to vindicate and protect such right * * In the Bodcaw case, in holding that plaintiff’s ownership of the mineral servitude could not be. disturbed by a tax sale, the court relied upon Shaw v. Watson, 151 La. 893, 92 So. 375, 378, where it had been denied that a transfer of mineral rights is nothing more than the imposition of an incumbrance, like a mortgage or an ordinary lease for occupancy or cultivation; but on the contrary had been announced that the sale of mineral rights, constituting a servitude upon the land, of the character of incorporeal real property, is an alienation of a part of the landowner’s interest in land and is “a dismemberment of his ownership,” being “more like a sale of an undivided interest in the land than like the imposing of a mortgage or an ordinary lease upon the land.”
Adherence to the same concept was manifested in Wiley v. Davis, 164 La. 1090, 115 So. 280, and in Palmer Corporation of Louisiana v. Moore, 171 La. 774, 132 So. 229.
In the former case, it was said that “the granting of a mineral lease on property is the granting of a servitude thereon [citation] and hence constitutes a dismemberment of said property amounting to a partial alienation thereof.” 115 So. 281.
In the latter case, the statement was made that “when a landowner sells only the mineral rights in his land, or sells the land and reserves the mineral rights, the transaction constitutes a dismemberment of the ownership, and is a sale or reservation, as the case may be, of one of the elements of ownership.” 132 So. 232.
Further rationale to the same effect is found in the earlier case of Hanby v. Texas Co., 140 La. 189, 190, 194, 72 So. 933, 934, where it was observed that the right of an owner to use the surface of his land to reduce to possession underlying oil and gas may be so alienated by him as to “dismember the title,” whereupon the resultant rights “retain the nature of the thing upon which they bear as though no dismemberment had occurred.”
Connell v. Muslow Oil Co., 186 La. 491, 172 So. 763, 766, decided in 1937, is a strong bulwark for the position of appellants. The facts in that case were that the lessee of the mineral rights to 80 acres of land in Caddo Parish, Louisiana, produced oil on the south forty acres of the tract. Reserving all mineral rights, the landowner subsequently sold the land to another, who conveyed the north forty acres without reservation of the mineral rights. Traced from this vendee through two similar conveyances, in which the mineral rights were not reserved or mentioned, Connell acquired title to the north forty acres, took possession of the land which he had purchased, and cultivated a part of it. He held possession for the prescriptive period required to acquire title by adverse possession in Louisiana. No well having been drilled on the north forty acres, Connell sued the Muslow Oil Company, which had acquired the mineral rights to the entire eighty acres. He claimed that, by prescription of ten years, he owned the mineral rights to the north forty acres
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_appel2_2_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 second listed appellant. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
CONTROLLED SANITATION CORPORATION, v. DISTRICT 128 OF the INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, and Lodge 2805 of the International Association of Machinists and Aerospace Workers, AFL-CIO, Appellants.
No. 74-1714.
United States Court of Appeals, Third Circuit.
Argued June 23, 1975.
Decided Oct. 17, 1975.
Certiorari Denied Feb. 23, 1976.
See 96 S.Ct. 1114.
Plato E. Papps, Louis P. Poulton, Washington, D. C., James A. Kelly, Scranton, Pa., Bernard Dunau, Mozart G. Ratner, Washington, D. C., for appellants.
Arthur R. Littleton, Roberta S. Staats, Morgan, Lewis & Boekius, Philadelphia, Pa., for appellee.
Before BIGGS, VAN DUSEN and ROSENN, Circuit Judges.
OPINION OF THE COURT
BIGGS, Circuit Judge.
On September 22, 1970, plaintiff-appellee, Controlled Sanitation Corporation (the Company) filed an amended complaint against District 128 and Lodge 2305 of the International Association of Machinists and Aerospace Workers, AFL-CIO, (the Unions), defendants-appellants, basing its suit on section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. The Company alleged that (1) a collective bargaining agreement existed between the Company and the Unions; (2) during its term on July 1, 1969 the Unions struck in violation of the no-strike clause contained in the agreement; and (3) as a result of the strike the Company “suffered the loss of its contract with the City of Scranton for the collection and disposal of refuse . . . .” The Company sought money damages for the alleged injury. The Unions denied that they had an agreement with the Company and asserted that if an agreement was found to exist all other issues presented were subject to determination by arbitration in accordance with the terms of that contract. A bifurcated jury trial ensued, and at the close of the first phase two questions were submitted to the jury, and were answered “Yes”. Interrogatory No. 1 asked the following question: “Did the defendant unions agree to be bound by the provisions of the contract entered into by the City of Scranton and Controlled Sanitation, including the provisions of the Administrative Agreement [the collective bargaining agreement] which is a part of that contract?” Appendix, p. 166.
At the second phase of the trial, devoted primarily to the issue of the amount of damages, the jury was instructed to determine the amount of damages, if any, which the Company suffered because of its loss of the contract. The jury assessed damages in favor of the Company in the sum of $208,-000 and judgment was entered forthwith against the Unions in the sum indicated. The Unions moved for a new trial, and in their brief in support of these motions urged, among other things, that if there was found to be a contract, arbitration should be employed to determine the remaining issues. On appeal, the Unions raise the arbitrability issue and acquiesce in the jury’s determination that there was a collective bargaining agreement between the parties. Definitely, therefore, the issue of the existence or lack of existence of an agreement is not presented by this appeal.
Two issues are raised on this appeal, and both relate to the question of whether, once the existence of the contract was established, the proper forum for the resolution of this controversy lay in the judicial process or in arbitration. We are required, first, to determine whether the contract’s arbitration and grievance procedures bound the Company to submit its claim for damages due to the strike of July, 1969 to arbitration. If they did, we must then confront the Company’s contention that judicial proceedings were warranted because the Unions’ conduct constituted a repudiation of the arbitration provisions. We find that the broad arbitration provisions of the contract encompassed this controversy and envisioned its submission to arbitration. Similarly, we believe the repudiation question is also subject to arbitration.
I.
The contract contains a standard no-strike clause (Article XVI) and grievance and arbitration procedure. Section I of Article XIII reads: “For the purpose of this Agreement, the term ‘Grievance’ means any dispute between the Employer and the Union or between the Employer and any employee concerning the effect, interpretation, application, claim of breach or violation of this Agreement or any other dispute which may arise between the parties.”
The procedure for handling grievances is detailed in Article XIII as follows: “Section 2. Any such grievance shall be settled in accordance with the following grievance procedure: A. The dispute or grievance shall be taken up by the Steward, the aggrieved employee and the foreman of the department involved within 24 hours of the occurrence of the alleged grievance'. The foreman shall render a decision, by the close of the working day if handed in before noon, otherwise by noon of the following day. B. If no satisfactory settlement is reached between the Steward, and the foreman, the grievance shall be reduced to writing. The Shop Committee shall then investigate, present and discuss such grievance with the designated Employer official, who shall render a decision within two (2) working days. C. If no satisfactory settlement is reached, the Shop Committee shall call in the Business Representative and/or Grand Lodge Representative of the International Association of Machinists and Aerospace Workers who shall meet with the designated Employer official and the Shop Committee. . . . ”
The agreement provided for the resolution of any unresolved grievance by arbitration as follows: “In the event the grievance or dispute is settled, such settlement shall be reduced to writing and copies distributed to all persons involved. In the event the grievance or dispute is not settled in a manner satisfactory to the grieving party (Union or Employer), within five (5) days, the grieving party may proceed, as follows: a Board of Arbitration shall be selected and such Board shall consist of one (1) member selected by the Union and one (1) member selected by the Employer. In the event these two (2) members of the Board fail to agree upon the disposition of the grievance or dispute within five (5) working days after meeting for this purpose, then they shall attempt to select a third member who shall act as chairman. If the parties fail to agree upon the third member, they shall petition the Court of Common Pleas of Lackawanna County to provide or select a third member. The decision of the majority of the Board shall be final and binding upon the parties to this agreement and shall be complied with within five (5) days, longer if agreed to by the parties, after the decision has been reached. Each party to this agreement shall pay 50% of the cost of the third member.” (emphasis added). Article XIII, Section 2(D).
Finally, the agreement provided that the grievance-arbitration procedure provided would be the sole means for settling disputes (Article XIII, Section 6): “The grievance procedure as provided for herein shall constitute the sole and exclusive method of determination, decision, adjustment or settlement between the parties of any and all grievances as herein defined and the said grievance procedure provided herein shall constitute the sole and exclusive remedy to be utilized by the parties hereto for such determination, decision, adjustment, or settlement of any and all grievances and disputes as herein defined, whether or not either party to the contract considers the same as a material breach of the contract or otherwise.” (emphasis added).
II.
There are certain aspects of unfairness, we believe, in permitting the Unions to first deny — a vigorous denial which lasted for a period of approximately three and a half years — the existence of a valid contract for arbitration, and then when they have lost that point to permit them to assert that they are entitled to arbitration under the contract. We would have grave doubts about enforcing the arbitration proceeding if it were not for more important governing circumstances. First and most important are a series of decisions of the Supreme Court of the United States in which the Court has emphasized that arbitration of labor disputes is a federally favored policy under the Labor Management Relations Act, 29 U.S.C. § 141 et seq. Consequently, although the parties are bound to arbitrate only those disputes which they have agreed to arbitrate, all doubts or ambiguities should be resolved in favor of arbitration. In effect, there is a presumption in favor of arbitrability which should be dispelled only when the agreement explicitly exempts certain conduct from arbitration or when the terms of the agreement, read as a whole, clearly envision non-arbitrability. Typical of these decisions is United Steelworkers of America v. Warrior & Gulf Co., 363 U.S. 574, 581-585, 80 S.Ct. 1347, 1353, 1354, 4 L.Ed.2d 1409 (1960), which stated: “Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement. . . . An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. ... In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad.” (emphasis added).
Applying these precepts to the arbitration provisions of the agreement in this case, we must rule that the Company’s damage claim for breach of the no-strike clause is a dispute susceptible to arbitration. We are aware, of course, that the Company contends that the agreement delineates a grievance procedure oriented solely to employee grievances. In so doing, it points to the procedures established in Article XIII, Section 2(A), (B), and (C). In view of the language employed in the contract, however, we cannot accept this argument.
The grievance and arbitration provisions of this contract are unusually broad. Section 1 of Article XIII makes clear that a grievance includes a dispute between the employer and the union involving a claimed breach of contract. Most importantly, Section 2(D) of that article specifically states that the employer may be the grieving party. A fair interpretation of the contract would then indicate that an employer — oriented grievance (i. e., an unsettled dispute) begins with the arbitration process or with Section 2(C). Finally, Section 6 of Article XIII represents a strong statement evidencing the parties’ intention that all disputes between the employer and the union, regardless of whether either party considers the dispute a material breach of contract, be subject to arbitration. Under these circumstances, the Company bound itself to arbitrate this damage claim.
III.
We turn to a consideration of the Company’s argument that the Unions repudiated the arbitration procedures, thereby permitting the Company to obtain judicial redress. There is an underlying and preliminary question here as to whether the alleged defense of repudiation is itself subject to arbitration, and the Unions urge us to hold that repudiation is an arbitrable question. This position, if valid, means that the district court, after finding the existence of a contract, should have required the parties to present to arbitration all other issues including repudiation itself. This is indeed a difficult question to answer and the law in respect to it is somewhat unclear.
We acknowledge that “the circumstances of the claimed repudiation are critically important” for they determine whether an arbiter or a court will resolve the underlying dispute. Drake Bakeries v. Bakery Workers, 370 U.S. 254, 262-263, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962). In Drake Bakeries, the employer sued the union for damages resulting from an alleged one day strike. The union sought to stay the suit pending arbitration, but the employer opposed the stay arguing that the dispute was not arbitrable or, in the alternative, that the Union had repudiated the arbitration provisions. The Supreme Court held that the district court had properly stayed the action pending completion of arbitration. In rejecting the repudiation argument, the Court quoted from 6 Cor-bin, Contracts § 1443 (1961 Supp., n. 34, pp. 192-193) which suggests that the issue of repudiation is one for judicial resolution. 370 U.S. at 263, n. 10, 82 S.Ct. 1346. It then proceeded to rule that the union’s actions did not excuse the employer from its duty to arbitrate. Implicitly, repudiation would appear a justiciable issue.
On the other hand, we must consider the effect of Operating Engineers Local 150 v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972). In Flair, the Union brought an action seeking damages and injunctive relief from the Flair Corporation alleging breach of their collective bargaining agreement. In 1964 the Union had entered into an agreement with Flair, incorporating by reference the 1963 master agreement between the Union and several contracting associations. The Union and these associations in 1966 entered into a new master agreement requiring arbitration of “any difference . . . between the parties hereto which cannot be settled by their representatives within forty-eight hours of its occurrence.” In 1968, four years having passed since the memorandum agreement was signed, a Union business agent found that four of Flair’s employees were non-union and that their wages were unsatisfactory. Flair refused to recognize any obligation under the 1964 agreement. Subsequently, in November, 1968, the Union filed suit to compel arbitration according to the terms of the 1966 master agreement. After an evidentiary hearing, the District Court, in an unreported opinion, decided there was an enforceable agreement between the company and the Union during the period 1964r-68, but that the Union was barred by laches. The Court of Appeals affirmed, Operating Engineers Local 150 v. Flair Builders, Inc., 440 F.2d 557 (7th Cir. 1971). The Supreme Court, however, reversed, holding as we read the opinion that the court’s duty was limited to deciding whether the parties had entered into an enforceable agreement to arbitrate and that “once a court finds that, as here, the parties are subject to the agreement to arbitrate, and that agreement extends to ‘any difference’ between them” it is required to submit the case to arbitration. 406 U.S. at 491-492, 92 S.Ct. at 1713. The Court particularly emphasized that the parties had agreed to arbitrate “any difference.” 406 U.S. at 491, 92 S.Ct. 1710.
Moreover, in reaching this result, the Court cited John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), a case which had been distinguished by the Court of Appeals. 406 U.S. at 490, 92 S.Ct. 1710. In Wiley, the employer had acquired by merger a company with an existing collective bargaining agreement. Following several disputes with the employer over employee rights, as well as pension fund payments, the Union brought an action to compel arbitration. The employer insisted, inter alia, that it had no duty to arbitrate because either (1) it was not bound by a collective bargaining agreement executed by its predecessor prior to the merger or (2) the Union had failed to utilize the prearbitration conferences required by the agreement.
Justice Harlan, writing for a unanimous Court in Wiley, held that the employer was bound by its predecessor’s collective bargaining agreement. 376 U.S. at 550-551, 84 S.Ct. 909. He also concluded that the arbitrator should determine the effect of the union’s alleged failure to follow the procedures mandated in the agreement. The Court indicated that labor disputes may not be broken into procedural and substantive aspects but should be considered as clustered problems. Justice Harlan explained:
“Doubt whether grievance procedures or some part of them apply to a particular dispute, whether such procedures have been followed or excused, or whether the unexcused failure to follow them avoids the duty to arbitrate cannot ordinarily be answered without consideration of the merits of the dispute which is presented for arbitration. In this case, one’s view of the Union’s responses to Wiley’s ‘procedural’ arguments depends to a large extent on how one answers questions bearing on the basic issue, the effect of the merger; e. g., whether or not the merger was a possibility considered by Wiley and the Union during the negotiation of the contract. It would be a curious rule which required that intertwined issues of ‘substance’ and ‘procedure’ growing out of a single dispute and raising the same questions on the same facts had to be carved up between two different forums, one deciding after the other. Neither logic nor considerations of policy compel such a result.
“Once it is determined, as we have, that the parties are obligated to submit the subject matter of a dispute to arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator. Even under a contrary rule, a court could deny arbitration only if it could confidently be said not only that a claim was strictly ‘procedural,’ and therefore within the purview of the court, but also that it should operate to bar arbitration altogether, and not merely limit or qualify an arbitral award. In view of the policies favoring arbitration and the parties’ adoption of arbitration as the preferred means of settling disputes, such cases are likely to be rare indeed. In all other cases, those in which arbitration goes forward, the arbitrator would ordinarily remain free to reconsider the ground covered by the court insofar as it bore on the merits of the dispute, using the flexible approaches familiar to arbitration. Reservation of ‘procedural’ issues for the courts would thus not only create the difficult task of separating related issues, but would also produce frequent duplication of effort.” 376 U.S. at 557-558, 84 S.Ct. at 918 (emphasis added).
We believe the Flair and Wiley cases compel us to avoid the repudiation question in this ease and to require that it, also, be submitted to arbitration. The Company’s contention that the Unions’ actions amounted to a repudiation of the agreement to arbitrate necessarily involves a consideration of questions requiring an interpretation of contractual terms and relating to the merits of the dispute. Likewise, it represents a dispute between the parties “concerning the interpretation, application, claim or breach or violation of” the collective bargaining agreement. Accordingly, it is subject to the agreement’s arbitration procedures. We note that several courts posed with this question have reached the same result. H & M Cake Box, Inc. v. Bakery Workers Local 45, 493 F.2d 1226 (1st Cir. 1974); General Dynamics Corp. v. Marine Workers Local 5, 469 F.2d 848, 853-854 (1st Cir. 1972); Granny Goose Foods, Inc. v. Teamsters, 88 LRRM 2029, 2033 (N.D.Cal.1974). See also Radio Corp. of America v. Association of Professional Engineering Personnel, 291 F.2d 105, 110 (3d Cir. 1961); Local 542 v. Penn State Construction, Inc., 356 F.Supp. 512, 513-514 (M.D.Pa.1973); Case Note, 43 Fordham L.Rev. 880 at 884-885 (1975). But see NLRB v. State Electric Service, Inc., 477 F.2d 749 at 751—752 (5th Cir. 1973) (holding, however, that since breach of a no-strike clause is not enough to relieve the employer of the duty to arbitrate, it cannot be held to have vitiated the entire contract), cert. denied, 414 U.S. 911, 94 S.Ct. 234, 38 L.Ed.2d 149 (1973).
In reaching the conclusion that the district court should have entered an order requiring the parties to arbitrate all issues, except that involving the existence of the contract, we remain mindful of the Supreme Court’s language in Drake Bakeries, supra, 370 U.S. at 266, 82 S.Ct. at 1353:
“If the union did strike in violation of the contract, the company is entitled to its damages; by staying this action, pending arbitration, we have no intention of depriving it of those damages. We simply remit the company to the forum it agreed to use for processing its strike damage claims. That forum, it is true, may be very different from a courtroom, but we are not persuaded that the remedy there will be inadequate. Whether the damages to be awarded by the arbitrator would not normally be expected to serve as an ‘effective’ deterrent to future strikes, which the company urges, is not a question to be answered in the abstract or in general terms. This question, as well as what result will best promote industrial peace, can only be answered in the factual context of particular cases.” (footnote omitted).
In view of this disposition, it is not necessary to pass upon other questions presented by the parties.
The judgment will be vacated and the cause remanded with direction to the District Court to order arbitration on the issue of repudiation and all other issues consequential to it.
. Interrogatory No. 2, also submitted to the jury, was as follows: “Was the refusal of C & A Bonding Co. to execute a performance bond on the application of Controlled Sanitation Corporation in favor of the City of Scranton caused by the strike of July 1, 1969?” Appendix, p. 166.
The relevance of this question to the issue of damages becomes clear in light of the fact that the city terminated its contract with the Company because of the Company’s failure to obtain the bond. On this appeal, the Unions insist that the district court erred in excluding evidence that an earlier bond was obtained through forgery by the Company’s insurance agent, albeit without the knowledge or complicity of the Company. In view of our disposition of this case, we find it unnecessary to discuss or resolve this issue.
. As is correctly stated in note 1, pp. 3-4 of the appellants’ brief: “Entry of judgment was based upon the following explanation made by the District Court in chambers prior to submission of the damage issue to the jury (Afppendix] p. 266): ‘The Court and counsel have conferred and we have arrived at the following: In the event of a verdict awarding damages to the plaintiff, it has been agreed that I will enter judgment on the verdict and Mr. Kelly [representing the Unions] will present his other defenses, which he has reserved, all of them, both factual and legal, in post-trial motions, and Mr. Littleton has agreed in view of the posture of this whole case that there will be no interest on the judgment until I rule on the post-trial motions because that would be the situation if we did not do this, if I did not enter judgment you would not be getting interest.’ ”
. The Unions took the position, as has been indicated, that there was no contract and hence no arbitration agreement in existence, but they clearly reserved the right that should the court find otherwise then the dispute should be submitted to arbitration. The Company seems to take the position that the Unions are in effect estopped from asserting such a defense because they originally insisted there was no contract. We cannot agree with this position, and it seems to be unsupported by either adequate authority or logic.
. The district court denied these motions in an order not accompanied by a written opinion. Consequently, in determining whether issues other than the existence of a contract should have been subject to the judicial process rather than arbitration, we find ourselves without the benefit of the district court’s reasoning. Nor do the record or briefs reveal the exact basis for the district court’s action.
As we will explain, appellee suggests that (1) this controversy did not fall within the arbitration mechanism of the agreement or (2) if it did, the Unions by their actions repudiated the agreement. It deserves mention that in a memorandum opinion of September 10, 1970, denying the Unions’ motion to dismiss, the district court noted that “neither the plaintiff in its complaint nor the defendant in its motion, seek to have the court order arbitration.” It further explained that the right to arbitrate may be waived. Memorandum Opinion of September 10, 1970, p. 3, n. 1. Later, on February 11, 1971, in a memorandum opinion denying the Unions’ motion to dismiss the amended complaint, the district court stated that the Unions’ request for arbitration was premature since the issue of whether a contract existed must first be determined. Under these circumstances, we surmise that the district court did not ground its rejection of arbitration on the theory that the Unions’ request for arbitration was untimely. In any event, the parties have not raised that issue on this appeal.
. Section 3 of Article XIII stipulates:
“General grievances or disputes affecting the employees in a Unit as a whole and discharge grievances may be initiated by the Shop Committee directly at Step B.”
. Quoted in Affiliated Food Distributors, Inc. v. Local Union No. 229, 483 F.2d 418 at 422 (3d Cir. 1973) (Adams, J., dissenting). The Warrior & Gulf Co. case formed part of the Steelworkers trilogy in which the Supreme Court enunciated the presumption of arbitrability rule. See also United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).
The Supreme Court has expressed similar sentiments on numerous occasions. See e. g., Gateway Coal Co. v. UMW, 414 U.S. 368 at 377-379, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974); Atkinson v. Sinclair Refining Co., 370 U.S. 238 at 241, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962) (contract not susceptible to construction requiring employer to arbitrate damage claim for breach of no-strike clause). See generally Note, 43 Fordham L.Rev. 880 at 881-882 (1975).
. These provisions clearly distinguish this case from Affiliated Food Distributors, Inc. v. Local Union No. 229, 483 F.2d 418 (3d Cir. 1973), which involved an agreement of substantially narrower phraseology. Drawing every inference and construing every clause in favor of the Company, we would find it difficult to decide whether the parties intended arbitration of this dispute. Under the Steelworkers trilogy, such an ambiguity must be resolved in favor of arbitration. By such an illustration, we merely emphasize the breadth of this particular agreement. In fact, we do not find this agreement ambiguous. We do note that each case, though subject to the above-stated rule, must be decided on the basis of its own particular collective bargaining agreement.
. The quote from Corbin included the following pertinent statement: “One who flatly repudiates the provision for arbitration itself should have no right to the stay of a court action brought by the other party.”
. In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), an employee, alleging wrongful discharge by the employer, sued union officials who had decided not to take his grievance to arbitration — the fifth and last step of the grievance procedure. The Court defined the problem as one requiring it to determine what circumstances would permit judicial review of such claims even though relief has not been sought through procedures afforded by the contract. The Court noted:
“An obvious situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures. Cf. Drake Bakeries v. Bakery Workers, 370 U.S. 254, 260-263 [82 S.Ct. 1346, 1350-1352, 8 L.Ed.2d 474]. See generally 6A Corbin, Contracts § 1443 (1962). In such a situation (and there may of course be others), the employer is es-topped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee’s cause of action.” 386 U.S. at 185, 87 S.Ct. at 914.
At least one court has intimated that there may be a distinction between the type of forums necessary to resolve Vaca v. Sipes repudiation claims and repudiation claims of the variety presented here. Granny Goose Foods, Inc. v. Teamsters, 88 LRRM 2029, 2031, n. 4 (N.D.Cal.1974). The resolution of such an issue is beyond the scope of the instant appeal.
. The implications of the Court’s opinion on other affirmative defenses, including repudiation, in cases involving similarly wide-ranging arbitration agreements were left unstated by the majority in Flair. Mr. Justice Powell, however, commented in dissent:
“The effect of the Court’s decision also could be far reaching in the law of labor-management relations. It appears that the long-accepted jurisdiction of the courts may now be displaced whenever a collective-bargaining agreement contains a general arbitration clause similar to that here involved. If in such circumstances the affirmative defense of laches can no longer be invoked in the courts, what of other affirmative defenses that go to the enforceability of a contract? Does the Court’s opinion vest in arbitrators the historic jurisdiction of the courts to determine fraud or duress in the inception of a contract?” 406 U.S. at 497, 92 S.Ct. at 1715.
. The controversy revolves around the Unions’ insistence that the Company was not at liberty to reduce the number of workers. Whether the Company attempted such a reduction, whether the Company was bound— contractually or otherwise — to maintain a certain number of employees, and whether the Unions’ strike was in violation of the agreement are issues pertinent to the repudiation question as well as the underlying dispute.
. We do not presume it necessary to enumerate the issues which the arbitration panel must resolve. Suffice it to say that, if the panel determines that the Unions did not repudiate the arbitration agreement, the panel should proceed to determine the legality of the strike and, if necessary, all questions relating to the amount and scope of damages suffered by the Company. See note 1, supra.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
GENERAL CASUALTY COMPANY OF WISCONSIN, a corporation, Plaintiff and Counter-Defendant-Appellee, v. Walter WHIPPLE, d/b/a Whipple Sales and Service, and Thomas Bickett, Defendants and Counter-Claimants-Appellants.
No. 14327.
United States Court of Appeals Seventh Circuit.
Feb. 24, 1964.
Glen L. Borden, Peoria, 111., Brian & Wilson, Toulon, 111., Harry C. Heyl, Black, Black & Borden, Peoria, III., for appellants.
Donald G. Beste, Eugene R. Johnson, Robert D. Jackson, Miller, Westervelt & Johnson, Peoria, 111., for appellee.
Before HASTINGS, Chief Judge, and CASTLE and KILEY, Circuit Judges.
HASTINGS, Chief Judge.
On or about January 21, 1955, a motor truck owned by Walter Whipple, d/b/a Whipple Sales and Service, and operated by Thomas Bickett was involved in a collision with an automobile driven by one Robert Boley. Riding with Boley in his car were eight other occupants. As a result of the collision, one of such occupants was killed and the others were seriously injured.
General Casualty Company of Wisconsin was the liability insurer for Whipple. Its insurance policy limited its liability to $50,000 for any one occurrence. The policy contained the usual provisions requiring the company to defend the insured and reserving to itself the right to make such investigation, negotiation and settlement as it deemed expedient.
John Boley and three other occupants of the Robert Boley automobile filed a diversity action in the district court against Whipple and Bickett. The aggregate recovery sought was far in excess of General Casualty’s policy limits.
General Casualty wrote to Whipple and Bickett, after receipt of the summons served on them, advising that it had engaged a law firm to defend them at the company’s expense. In this letter, the company further advised them that the amount of recovery sought exceeded the policy limits and that they could engage other counsel at their own expense, if they so desired. Whipple and Bickett expressed written satisfaction with the company’s choice of defense counsel.
General Casualty investigated the accident and defended the Boley suit. The facts relating to the collision in question show that Bickett, while driving the truck, had slowed the truck to a speed of ten to fifteen miles per hour and signaled by hand for a left turn, when the rear of the truck was struck squarely by the Boley automobile in which nine persons were riding.
A jury returned a verdict for the four plaintiffs aggregating $76,500 and judgment for that amount was entered against Whipple and Bickett. No appeal was taken from this judgment.
After first advising Whipple and Bickett that it had elected not to appeal the judgment, General Casualty paid to the clerk of the district court, in partial satisfaction of the judgment, the sum of $51,203.41. This payment covered $50,-000 on principal of the judgment (the amount of its policy limit), interest on the judgment to date of payment and court costs.
Thereafter, General Casualty (hereinafter called plaintiff) filed the instant suit in the district court against Whipple and Bickett (hereinafter called defendants). It sought a declaratory judgment that it had fully discharged its contractual duties to defendants under its insurance policy and that it would not be obligated to defend pending or future suits or pay future expenses resulting from the collision on January 21, 1955.
Defendants filed a counterclaim in this action alleging that plaintiff was negligent and guilty of bad faith in its defense of the personal injury suit against them and in failing to appeal the judgment against them. They demanded judgment against plaintiff for the amount of the excess of the verdict over the policy limits, with interest and costs.
The case was submitted to a trial by jury on the issues joined on the complaint and counterclaim. At the close of plaintiff’s case and again at the end of all the evidence, plaintiff moved for a directed verdict. The trial court reserved its ruling on both motions.
The jury returned a verdict finding the issues for defendants and awarding them damages in the sum of $35,048.64. Judgment was rendered on the verdict.
Plaintiff then moved to set aside the verdict and judgment against it and for judgment in its favor on its pending motions for a directed verdict, or in the alternative for a new trial. The trial court granted plaintiff’s motion, vacated and set aside the verdict and judgment for defendants on their counterclaim and entered judgment for plaintiff on its motions for directed verdict. Defendants now appeal from such judgment.
On appeal, defendants contend that, viewing the evidence in the light most favorable to them (as we must do), plaintiff was negligent and acted in bad faith in failing to attempt to settle the case before conclusion of the trial and in not appealing the judgment against them. As a consequence, they urge that the district court erred in setting aside the jury verdict and judgment for them and in granting judgment for plaintiff.
Defendants do not contend there was negligence in the accident investigation, choice of defense counsel or the manner in which the defense was conducted.
It is well settled that an insurance company, which has issued a policy containing limits on its liability, may so conduct itself as to be liable for the entire judgment recovered against the insured, regardless of the policy limits. Ballard v. Citizens Cas. Co. of New York, 7 Cir., 196 F.2d 96, 99 (1952). While it is conceded that Illinois law governs here, the parties disagree as to the standard of conduct which plaintiff must engage in to be liable beyond the policy limits.
Plaintiff contends defendants must prove conduct with intent to deceive, in the nature of fraud, and cites, inter alia, Bentley v. Farmers’ Insurance Exchange, 6 Cir., 289 F.2d 59, 60-61 (1961) (applying Michigan law); Slater v. Motorists Mutual Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45, 48 (1962) (applying Ohio law). No cases applying Illinois law are cited in support of this contention.
Defendants state that “[t]he law in Illinois * * * is that the insurer must exercise good faith in all respects to the insured, and if in any respect it is negligent, then it has not acted in good faith toward its insured.”
Our court had this issue before it in Ballard v. Citizens Cas. Co. of New York, supra. In an opinion by Judge Duffy, we said that “[t]he only applicable decision of an Illinois court that has been cited to us or that we have been able to find is Olympia Fields Country Club v. Bankers Indemnity Insurance Co., 1945, 325 Ill.App. 649, 60 N.E.2d 896.” Id. 196 F.2d at 100. The same is true in the instant case.
The Olympia Fields ease was carefully analyzed in Ballard, in which it appears that Olympia Fields expressly rejected cases applying the fraud standard. Id., 196 F.2d at 100. It quoted with apparent approval from cases applying the negligence or bad faith standard of conduct. Id., 196 F.2d at 100-102. At page 102 of 196 F.2d of the opinion, we stated:
“In the Olympia Fields opinion the court said, 60 N.E.2d at page 906: ‘In our judgment, the weight of authority supports the rule that the insurer cannot be held liable for refusing to settle a case before or during trial for an amount within the limits of its liability under the policy although such refusal may result in a judgment against the assured for an amount in excess of the liability of the insurer, in the absence of fraud, negligence or bad faith.’ (Emphasis supplied)”
Thus, we conclude that negligence or bad faith is the Illinois standard of conduct to be applied to the facts in determining whether plaintiff is liable beyond the policy limits for failing to settle the case. The district court so instructed the jury.
The test for negligence in this case is that conduct which an ordinary reasonable man would engage in, not when solely considering the interests of the insurer, but upon giving equal consideration to the interests of the insurer and the insured. Fidelity and Casualty Company of New York v. Robb, 5 Cir., 267 F.2d 473 (1959); Ballard v. Citizens Cas. Co. of New York, supra, 196 F.2d at 102. The burden of proving negligence or bad faith as alleged in their counterclaim is on defendants. Frank B. Connet Lumber Co. v. New Amsterdam Cas. Co., 8 Cir., 236 F.2d 117, 127 (1956); Maryland Casualty Co. v. Cook-O’Brien Const. Co., 8 Cir., 69 F.2d 462, 466 (1934), cert. denied, 293 U.S. 569, 55 S.Ct. 81, 79 L.Ed. 668.
The attorneys engaged by plaintiff and approved by defendants were cognizant of the seriousness of the injuries to the occupants of the automobile and the likelihood that a verdict in favor of the occupants would exceed the policy limit of $50,000. However, they had obtained eye witnesses who estimated the speed of the Boley automobile at between seventy and ninety miles per hour and who had seen Bickett signal by hand for a left turn. After the accident, the automobile was in the right hand lane of the highway. These and other facts disclosed by investigation led plaintiff’s attorneys to believe they had a strong defense.
The evidence relating to settlement shows that attorneys who represented the injured occupants offered to settle the case for approximately $190,000. Plaintiff’s attorneys never offered to settle for the maximum limits of the policy. Just prior to trial, they were informed by attorneys for one of the occupants that the occupants would not settle for the policy limits.
During the trial, an attorney for the occupants informed plaintiff’s attorney that no settlement was possible unless there was an offer from Montavon’s insurance carrier in addition to the limits of plaintiff’s policy.
Thus, it is undisputed that plaintiff never received or made an offer to settle within the policy limits. Defendants contend that plaintiff had a duty to make such an offer and its failure to do so constituted negligence. Cases cited by defendants in support of this contention are distinguishable from the present case.
In Ballard v. Citizens Cas. Co. of New York, supra, the insured was sued for $50,000 by Farwell for the death of her husband, under the Illinois Dram Shop Act, Ill.Rev.Stat.1951, c. 43, § 94 et seq. The insurance company employed attorneys to defend the suit and the insured engaged a personal attorney. Prior to trial, the company attorney refused an offer to settle the case for the policy limit of $2,500, stating that they could probably settle for less at the trial. At the trial, Farwell’s attorney offered to settle for $2,000. The company attorney refused this offer, despite insistence by the insured’s attorney that the offer be accepted and that successful defense of the suit appeared difficult. No attempt was made to communicate the offer to the company. A judgment for $6,500 was entered in favor of Farwell. The insured brought suit against the company and the court held, on appeal, that substantial evidence supported the jury verdict and judgment finding lack of good faith by the company and its attorneys in refusing to settle within the policy limits.
In Fidelity and Casualty Company of New York v. Robb, supra, the insurer rejected an offer of settlement for less than the policy limits. The court reversed a jury verdict for the insured due to failure of the trial court to instruct the jury that the insurer could consider its own interests as well as the interests of the insured.
Bell v. Commercial Insurance Co. of Newark, N. J., 3 Cir., 280 F.2d 514 (1960), held that a jury question existed as to whether the insurer acted in bad faith in failing to attempt to settle the case after conceding liability at pre-trial.
The determination in this class of eases is one of fact and the result in each case depends upon its own peculiar facts. Unlike the above cases, in the instant case the occupants’ attorneys made no offer to settle within the policy limits or for any amount reasonably close thereto. ■Plaintiff’s attorneys reasonably believed there was no probability of affecting such a settlement and that they had a strong defense. The matter was further influenced by other pending suits arising out of the same collision.
We hold that under the facts of this case, no reasonable person, after equal consideration of the interests of the insurer and the insured, would decide that the insurer had an affirmative duty to attempt to settle the case within the policy limits.
Defendants’ second contention is that plaintiff was negligent in failing to appeal the jury verdict and judgment in the personal injury suit.
r Plaintiff’s duty to defend the suit in the trial court existed by reason of the insurance contract, and if it had a duty to appeal, this duty flowed from the contract.
The applicable provisions of the insurance contract provide:
“II Defense, Settlement, Supplementary Payments
“As respects the insurance afforded by the other terms of this policy the company shall:
“(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof * * (Emphasis added.)
In Denham v. La Salle-Madison Hotel Co., 7 Cir., 168 F.2d 576 (1948), cert. denied, 335 U.S. 871, 69 S.Ct. 167, 93 L.Ed. 415, we considered the following similar insurance contract provision:
“It is further agreed that as respects insurance afforded by this policy? Underwriters shall—
“(1) Defend the Assured in his name and behalf [in] any suit against the Assured alleging such loss and seeking damages on account thereof, even if such suit is groundless, false or fraudulent * * (Emphasis added.) Id., 168 F.2d at 584.
Speaking for the court, Judge Major stated:
“[P]aragraph (1) gives some color to the defendant’s argument, [that plaintiff, insurer, had an obligation to defend the insured even though insurer had tendered the policy limit of $10,000] but that paragraph is limited to the phrase which proceeds it, ‘as respects insurance afforded by this policy.’ Upon plaintiff’s tender of $10,000, its liability for the payment of losses was extinguished. It was only obligated to defendant ‘as respects insurance afforded by this policy,’ and there being no further insurance afforded, we are of the view that its obligation to defend was likewise terminated. Defendant’s theory would produce the incongruous situation that plaintiff would have a continuing obligation to defend, notwithstanding its obligation to pay has been exhausted. We are of the view that no such liability was intended by the provision in question and that it cannot reasonably be so construed.” Id., 168 F.2d at 584. Accord, Moore v. Columbia Casualty Company, S.D.Ill., 174 F.Supp. 566, 573 (1959).
We hold, in accord with Denham, that since the plaintiff paid into court the full policy limits, plus all costs and interest, its duty to further defend defendants ceased under the terms of its contract.
In view of all the circumstances present in this case, it is our conclusion after considering the evidence in the light most favorable to defendants, that as a matter of law, there is no support for a finding that plaintiff failed to exercise good faith toward defendants in any respect.
The district court did not err in vacating the jury verdict and resulting judgment for defendants, and in entering judgment for plaintiff.
The judgment appealed from is affirmed.
Affirmed.
. Merle Whipple, brother of Walter Whipple, and Ralph Montavon were also named as defendants. At the trial, Merle Whipple was dismissed on a directed verdict. Montavon was later dismissed on Ms motion for judgment notwithstanding the verdict against Mm.
. The attorney representing Montavon, one of the original four defendants, testified that the only offer to settle by the occupants’ attorneys was for $192,500. One attorney for the occupants stated, by deposition, that he made an offer to settle for $180,000 to $190,000. The other attorney for tbe occupants testified that the offer to settle was approximately $192,000.
. Montavon was one of four original defendants. See n. 1 supra.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_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).
HEALTH SYSTEMS AGENCY STEERING COMMITTEE FOR SOUTHEASTERN PENNSYLVANIA and Regional Comprehensive Health Planning Council, Inc., Appellees, v. MATHEWS, F. David, Individually and in his capacity as Secretary of the Department of Health, Education and Welfare and Department of Health, Education and Welfare. Appeal of City of Philadelphia, Intervener Defendant.
No. 77-1107.
United States Court of Appeals, Third Circuit.
Argued Oct. 7, 1977.
Decided Dec. 14, 1977.
Harold Cramer, Anthony E. Creato, Mesi-rov, Celman, Jaffe & Cramer, Philadelphia, Pa., for appellant.
Thomas N. O’Neill, Jr., Donald W. Kramer, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for appellees.
Before SEITZ, Chief Judge, STALEY and HUNTER, Circuit Judges.
JAMES HUNTER, III, Circuit Judge:
This appeal requires us to determine whether the Secretary of Health, Education and Welfare (the Secretary) properly revised the southeastern Pennsylvania Health Service Area under the National Health Planning and Resources Development Act of 1974, 42 U.S.C. §§ 300k et seq. The District Court held that the Secretary had not complied with statutory requirements before redesignating a five-county area in southeastern Pennsylvania and granted summary judgment for plaintiffs, enjoining the Secretary’s revision of the area. The Secretary has not pressed an appeal, but the City of Philadelphia, which intervened as a party defendant in the District Court, urges reversal of the order. Although the District Court held that the Secretary was required to consult certain designated entities before formalizing the revision, we find instead that when a redes-ignation request is made by a state governor, the governor must initiate the consultations. Since the plaintiffs submitted an affidavit, not contradicted by the Secretary, that states that the consultation procedure was not followed by the governor, we find that the Secretary was without authority to make the redesignation and affirm the grant of summary judgment on this ground.
I.
The National Health Planning and Resources Development Act (the Act) creates a statutory structure by which state and area-wide planning for health care distribution can be effectuated and coordinated. The Secretary of H.E.W. is charged with the implementation of the Act, in conjunction with state and local health planning officials. 42 U.S.C. § 3007.
One of the purposes of the Act is to delineate geographical areas (Health Service Areas) within which a central agency (Health Systems Agency) can function as a coordinating body. The Agency is responsible for providing access to health care for the area residents, restraining the rising costs of providing health care, and maximizing available funds for health care by avoiding duplication of medical facilities within the area. Id. § 3007 -2(a). The Secretary is empowered to designate the geographical boundaries for the Health Systems Areas, based on the recommendations of the governor of each state. Prior to communicating his recommendation to the Secretary, the governor is required by the Act to consult with the officers and agencies of the political subdivisions within the state, the state health planning agency, entities within the state which have established regional, metropolitan, or local health care plans, and other qualified regional medical programs within the state. Id. § 3007(b)(2).
Once the Secretary has designated a Health Service Area, he remains under a duty to review the appropriateness of the area’s boundaries, and to act to revise the boundaries if they no longer meet the population and resource availability requirements of section 3007(b)(4). Further, a state governor or Health Systems Agency can request a redesignation. Id.
II.
Pursuant to this statutory framework, the Secretary sent letters seeking recommendations from the governors of each state concerning the initial designation of Health Service Areas. On May 3, 1975, Governor Shapp of Pennsylvania proposed an eight-county area for southeastern Pennsylvania and the adjacent part of southern New Jersey. Before the Secretary made his designation, the three New Jersey counties were withdrawn from the proposed area, leaving the five Pennsylvania counties — Philadelphia, Delaware, Chester, Montgomery, and Bucks — to comprise the revised Health Systems Area. This area was approved by the Secretary as of September 2, 1975, the date of publication of the designation in the Federal Register. 40 Fed.Reg. 40306, 40313 (Sept. 2, 1975).
On December 22, 1975, Governor Shapp requested that the Health Service Area established by the Secretary be divided into three separate areas for the purpose of the Act, one area including Bucks and Montgomery Counties, one comprised of Chester and Delaware Counties, and the third encompassing only Philadelphia County. The Secretary approved the request for the “two-two-one” format and this designation was published in the Federal Register on June 1, 1976. 41 Fed.Reg. 22119 (June 1, 1976).
Plaintiffs HSA Steering Committee and RCHPC brought suit to enjoin the Secretary from implementing the revised boundaries for separate Health Service Areas in the five-county region. They allege that the action by the Secretary and Governor Shapp constituted a requested redesignation, an action which required certain consultations pursuant to section 3001 (b)(4) with the local health service entities as a precondition to its effectiveness. The Secretary moved for dismissal of the plaintiffs’ suit, or in the alternative for summary judgment. The plaintiffs filed a cross-motion for summary judgment. The City of Philadelphia was granted leave to intervene as a party defendant before oral argument on the motions.
The District Court denied the Secretary’s motions and granted summary judgment for the plaintiffs, enjoining the Secretary from redesignating or revising the original five-county area unless such a revision was in full compliance with the procedures mandated by the Act. The Court held that in this case, the Secretary was required to consult with the health planning entities referred to in section 3001(b)(4) before he could lawfully redesignate the five-county area into the two-two-one format. Determining that RCHPC, one of the entities required to be consulted before a redesignation could occur, had not been contacted by the Secretary, the Court found that the two-two-one designation was effected without adherence to proper procedures.
III.
Section 3001 (b)(4), which provides for the procedures to be followed in the revision or redesignation of a Health Service Area, states in part:
The Secretary shall review on a continuing basis and at the request of any Governor or designated health systems agency the appropriateness of the boundaries of the health service areas established under paragraph [3001 (b)](3) . If the secretary acts on his own initiative to revise the boundaries of any health service area, he shall consult with the Governor of the appropriate State or States, the entities referred to in paragraph [3001 (b)](2), the appropriate health systems agency or agencies and the appropriate Statewide Health Coordinating Council . . . . A request for boundary revision shall be made only after consultation with the Governor of the appropriate State or States, the entities referred to in paragraph [3001 (b)](2), the appropriate designated health systems agencies, and the appropriate established Statewide Health Coordinating Council and shall include the comments concerning the revision made by the entities consulted in requesting the revision.
The section indicates that when the Secretary is requested to revise the boundaries of a Health Service Area, a duty of consultation with the appropriate state and local entities falls on either the state governor or the Health Systems Agency for the area, whichever has made the request. An interpretive guideline promulgated by the Secretary after the District Court’s disposition of this suit indicates that when the state governor requests a boundary redesignation, he must first solicit the views of the various concerned local entities, 41 Fed.Reg. 39432 (Sept. 15, 1976).
Since Governor Shapp requested the change from the five-county format to the two-two-one designation, he was responsible for the consultations that section 3001 (b)(4) requires before the Secretary could find that the existing area, as initially designated, no longer met the requirements of the Act.
On the basis of an affidavit submitted by the president of RCHPC in support of plaintiff’s cross-motion for summary judgment and not contradicted by the Secretary, we find that neither Governor Shapp nor members of his staff consulted with RCHPC before recommending the boundary revision. Affidavit of James H. Loucks, App. at 34a ¶ 8. Since RCHPC is an agency entitled by the Act to be consulted before any redesignation can be recommended, the proper procedures were not followed in the revision of the five-county area into the two-two-one configuration. Consequently, an order enjoining the Secretary’s redesig-nation unless and until the proper consultation procedures are followed is proper in this case.
Although the trial court based its decision on different grounds, this court may nonetheless affirm the order for reasons different from those relied on below. See Daburlos v. Commercial Insurance Co., 521 F.2d 18, 20 n.1 (3d Cir. 1975); Rhoads v. Ford Motor Co., 514 F.2d 931, 934 (3d Cir. 1975). Thus the order of the District Court will be affirmed.
. The plaintiffs-appellees are the Health Systems Agency Steering Committee for Southeastern Pennsylvania (HSA Steering Committee) and the Regional Comprehensive Health Planning Council (RCHPC).
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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sc_certreason
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L
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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.
SURE-TAN, INC., et al. v. NATIONAL LABOR RELATIONS BOARD
No. 82-945.
Argued December 6, 1983
Decided June 25, 1984
Michael R. Flaherty argued the cause for petitioners. With him on the briefs were John A. McDonald and Robert A. Creamer.
Edwin S. Kneedler argued the cause for respondent. With him on the brief were Solicitor General Lee, Deputy Solicitor General Wallace, Norton J. Come, and Linda Sher
Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by J. Albert Woll, Laurence Gold, and George Kaufmann; for the Asian American Legal Defense and Education Fund et al. by Kenneth Kimerling; for the California Agricultural Labor Relations Board by Manuel M. Medeiros, Nancy C. Smith, and Daniel G. Stone; for the California Rural Legal Assistance Foundation by Mary K. Gillespie; for the Mexican American Legal Defense and Education Fund et al. by Peter R. Taft, Allen M. Katz, Joaquin G. Avila, John E. Huerta, and Morris J. Bailer; and for the United Farm Workers of America, AFL-CIO, by Carlos M. Alcala and Ira L. Gottlieb.
Justice O’Connor
delivered the opinion of the Court.
At issue in this case are several questions arising from the application of the National Labor Relations Act (NLRA or Act) to an employer’s treatment of its undocumented alien employees. We first determine whether the National Labor Relations Board (NLRB or Board) may properly find that an employer engages in an unfair labor practice by reporting to the Immigration and Naturalization Service (INS) certain employees known to be undocumented aliens in retaliation for their engaging in union activity, thereby causing their immediate departure from the United States. We then address the validity of the Board’s remedial order as modified by the Court of Appeals.
I
Petitioners are two small leather processing firms located in Chicago that, for purposes of the Act, constitute a single integrated employer. In July 1976, a union organization drive was begun. Eight employees signed cards authorizing the Chicago Leather Workers Union, Local 431, Amalgamated Meatcutters and Butcher Workmen of North America (Union), to act as their collective-bargaining representative. Of the 11 employees then employed by petitioners, most were Mexican nationals present illegally in the United States without visas or immigration papers authorizing them to work. The Union ultimately prevailed in a Board election conducted on December 10, 1976.
Two hours after the election, petitioners’ president, John Surak, addressed a group of employees, including some of the undocumented aliens involved in this case. He asked the employees why they had voted for the Union and cursed them for doing so. He then inquired as to whether they had valid immigration papers. Many of the employees indicated that they did not.
Petitioners filed with the Board objections to the election, arguing that six of the seven eligible voters were illegal aliens. Surak executed an accompanying affidavit which stated that he had known about the employees’ illegal presence in this country for several months prior to the election. On January 19, 1977, the Board’s Acting Regional Director notified petitioners that their objections were overruled and that the Union would be certified as the employees’ collective-bargaining representative. The next day, Surak sent a letter to the INS asking that the agency check into the status of a number of petitioners’ employees as soon as possible. In response to the letter, INS agents visited petitioners’ premises on February 18, 1977, to investigate the immigration status of all Spanish-speaking employees. The INS agents discovered that five employees were living and working illegally in the United States and arrested them. Later that day, each employee executed an INS form, acknowledging illegal presence in the country and accepting INS’s grant of voluntary departure as a substitute for deportation. By the end of the day, all five employees were on a bus ultimately bound for Mexico.
On February 22 and March 23, 1977, the Board’s Acting Regional Director issued complaints alleging that petitioners had committed various unfair labor practices. On March 29, 1977, petitioners sent letters to the five employees who had returned to Mexico offering to reinstate them, provided that doing so would not subject Sure-Tan to any violations of United States immigration laws. The offers were to remain open until May 1, 1977.
The unfair labor practice charges were heard by an Administrative Law Judge (ALJ), whose findings and conclusions as to the merits of the complaints were affirmed and adopted by the Board. Specifically, the Board affirmed the ALJ’s conclusion that petitioners had violated §§ 8(a)(1) and (3) by requesting the INS to investigate the status of their Mexican employees “solely because the employees supported the Union” and “with full knowledge that the employees in question had no papers or work permits.” Sure-Tan, Inc., 234 N. L. R. B. 1187 (1978). The Board, therefore, agreed with the ALJ’s finding that “the discriminatees’ subsequent deportation was the proximate result of the discriminatorily motivated action by [petitioners] and constitutes a constructive discharge.” Id., at 1191.
As a remedy for the § 8(a)(3) violations, the Board adopted the ALJ’s recommendation that petitioners be ordered to cease and desist from their various unfair labor practices, including notifying the INS of their employees’ status because of the employees’ support of the Union. However, the Board declined to adopt the ALJ’s specific recommendations as to the appropriate remedy. The ALJ had recommended that petitioners be ordered to offer the discharged employees reinstatement and that the offers be held open for six months. In addition, the ALJ had concluded that since, under past Board precedent, backpay is normally tolled during those periods in which employees are not available for employment, an ordinary backpay award could not be ordered in this case. Nevertheless, the ALJ had invited the Board to consider awarding backpay for a minimum 4-week period both to provide some measure of relief to the illegally discharged employees and to deter future violations of the NLRA.
The Board, however, concluded that the ALJ’s analysis of the remedy was “unnecessarily speculative.” 234 N. L. R. B., at 1187. Since the record contained no evidence that the employees had not since returned to the United States, the Board modified the ALJ’s order by substituting the “conventional remedy of reinstatement with backpay,” thereby leaving until subsequent compliance proceedings the determination whether the employees had in fact been available for work. Ibid.
On appeal, the Court of Appeals enforced the Board’s order. 672 F. 2d 592 (CA7 1982). The court fully agreed that petitioners had violated the NLRA by constructively discharging their undocumented alien employees. It also concurred in the Board’s judgment that the usual remedies of reinstatement and backpay were appropriate in these circumstances. The Court of Appeals did, however, modify the Board’s order in several significant respects. First, it concluded that reinstatement would be proper only if the discharged employees were legally present and free to be employed in the United States when they presented themselves for reinstatement. The court also decided that the reinstatement offers in their present form were deficient since they did not allow a reasonable time for the employees to make arrangements for legal reentry. The court therefore ordered that the offers be left open for a period of four years. It further concluded that the offers must be written in Spanish, and delivered so as to allow for verification of receipt.
As for backpay, the court required that the discharged employees should be deemed unavailable for work during any period when they were not legally entitled to be present and employed in the United States. Recognizing that the discharged employees would most likely not have been lawfully available for employment and so would receive no backpay award at all, the court decided that “it would better effectuate the policies of the Act to set a minimum amount of backpay which the employer must pay in any event, because it was his discriminatory act which caused these employees to lose their jobs.” Id., at 606. Believing that six months' backpay would be the minimum amount appropriate for this purpose, the court suggested that the Board consider this remedy. The Board accepted the court’s suggestion, and the final judgment order approved by the court included the minimum award of six months’ backpay. We granted cer-tiorari, 460 U. S. 1021 (1983). We now affirm the judgment of the Court of Appeals insofar as it determined that petitioners violated the Act by constructively discharging their undocumented alien employees, but reverse the judgment as to some of the remedies ordered and direct that the case be remanded to the Board.
A
We first consider the predicate question whether the NLRA should apply to unfair labor practices committed against undocumented aliens. The Board has consistently held that undocumented aliens are “employees” within the meaning of §2(3) of the Act. That provision broadly provides that “[t]he term ‘employee’ shall include any employee,” 29 U. S. C. § 152(3), subject only to certain specifically enumerated exceptions. Ibid. Since the task of defining the term “employee” is one that “has been assigned primarily to the agency created by Congress to administer the Act,” NLRB v. Hearst Publications, Inc., 322 U. S. 111, 130 (1944), the Board’s construction of that term is entitled to considerable deference, and we will uphold any interpretation that is reasonably defensible. See, e. g., Ford Motor Co. v. NLRB, 441 U. S. 488, 496-497 (1979); NLRB v. Iron Workers, 434 U. S. 335, 350 (1978); NLRB v. Erie Resistor Corp., 373 U. S. 221, 236 (1963).
The terms and policies of the Act fully support the Board’s interpretation in this case. The breadth of § 2(3)’s definition is striking: the Act squarely applies to “any employee.” The only limitations are specific exemptions for agricultural laborers, domestic workers, individuals employed by their spouses or parents, individuals employed as independent contractors or supervisors, and individuals employed by a person who is not an employer under the NLRA. See 29 U. S. C. § 152(3). Since undocumented aliens are not among the few groups of workers expressly exempted by Congress, they plainly come within the broad statutory definition of “employee.”
Similarly, extending the coverage of the Act to such workers is consistent with the Act’s avowed purpose of encouraging and protecting the collective-bargaining process. See Hearst Publications, Inc., supra, at 126. As this Court has previously recognized: “[Acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions.” De Canas v. Bica, 424 U. S. 351, 356-357 (1976). If undocumented alien employees were excluded from participation in union activities and from protections against employer intimidation, there would be created a subclass of workers without a comparable stake in the collective goals of their legally resident co-workers, thereby eroding the unity of all the employees and impeding effective collective bargaining. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 33 (1937). Thus, the Board’s categorization of undocumented aliens as protected employees furthers the purposes of the NLRA.
B
Counterintuitive though it may be, we do not find any conflict between application of the NLRA to undocumented aliens and the mandate of the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq. This Court has observed that “[t]he central concern of the INA is with the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.” De Canas v. Bica, 424 U. S., at 359. The INA evinces “at best evidence of a peripheral concern with employment of illegal entrants.” Id., at 360. For whatever reason, Congress has not adopted provisions in the INA making it unlawful for an employer to hire an alien who is present or working in the United States without appropriate authorization. While it is unlawful to “concea[l], harbo[r], or shiel[d] from detection” any alien not lawfully entitled to enter or reside in the United States, see 8 U. S. C. § 1324(a)(3), an explicit proviso to the statute explains that “employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.” Ibid. See De Canas v. Bica, supra, at 360, and n. 9. Moreover, Congress has not made it a separate criminal offense for an alien to accept employment after entering this country illegally. See 119 Cong. Rec. 14184 (1973) (remarks of Rep. Dennis). Since the employment relationship between an employer and an undocumented alien is hence not illegal under the IN A, there is no reason to conclude that application of the NLRA to employment practices affecting such aliens would necessarily conflict with the terms of the IN A.
We find persuasive the Board’s argument that enforcement of the NLRA with respect to undocumented alien employees is compatible with the policies of the IN A. A primary purpose in restricting immigration is to preserve jobs for American workers; immigrant aliens are therefore admitted to work in this country only if they “will not adversely affect the wages and working conditions of the workers in the United States similarly employed.” 8 U. S. C. § 1182(a)(14). See S. Rep. No. 748, 89th Cong., 1st Sess., 15 (1965). Application of the NLRA helps to assure that the wages and employment conditions of lawful residents are not adversely affected by the competition of illegal alien employees who are not subject to the standard terms of employment. If an employer realizes that there will be no advantage under the NLRA in preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly lessened. In turn, if the demand for undocumented aliens declines, there may then be fewer incentives for aliens themselves to enter in violation of the federal immigration laws. The Board’s enforcement of the NLRA as to undocumented aliens is therefore clearly reconcilable with and serves the purposes of the immigration laws as presently written.
III
Accepting the premise that the provisions of the NLRA are applicable to undocumented alien employees, we must now address the more difficult issue whether, under the circumstances of this case, petitioners committed an unfair labor practice by reporting their undocumented alien employees to the INS in retaliation for participating in union activities. Section 8(a)(3) makes it an unfair labor practice for an employer “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” 29 U. S. C. § 158(a)(3). The Board, with the approval of lower courts, has long held that an employer violates this provision not only when, for the purpose of discouraging union activity, it directly dismisses an employee, but also when it purposefully creates working conditions so intolerable that the employee has no option but to resign — a so-called “constructive discharge.” See, e. g., NLRB v. Haberman Construction Co., 641 F. 2d 351, 358 (CA5 1981) (en banc); Cartwright Hardware Co. v. NLRB, 600 F. 2d 268, 270 (CA10 1979); J. P. Stevens & Co. v. NLRB, 461 F. 2d 490, 494 (CA4 1972); NLRB v. Holly Bra of California, Inc., 405 F. 2d 870, 872 (CA9 1969); Atlas Mills, Inc., 3 N. L. R. B. 10, 17 (1937). See also 3 T. Kheel, Labor Law § 12.05[1][a] (1982).
Petitioners do not dispute that the antiunion animus element of this test was, as expressed by the lower court, “flagrantly met.” 672 F. 2d, at 601. “The record is replete with examples of Sure-Tan’s blatantly illegal course of conduct to discourage its employees from supporting the Union.” Id., at 601-602. Petitioners contend, however, that their conduct in reporting the undocumented alien workers did not force the workers’ departure from the country; instead, they argue, it was the employees’ status as illegal aliens that was the actual “proximate cause” of their departure. See Brief for Petitioners 13-15.
This argument is unavailing. According to testimony by an INS agent before the ALJ, petitioners’ letter was the sole cause of the investigation during which the employees were taken into custody. This evidence was undisputed by petitioners and amply supports the ALJ’s conclusion that “but for [petitioners’] letter to Immigration, the discriminatees would have continued to work indefinitely.” 234 N. L. R. B., at 1191. And there can be little doubt that Surak foresaw precisely this result when, having known about the employees’ illegal status for some months, he notified the INS only after the Union’s electoral victory was assured. See supra, at 887; 672 F. 2d, at 601.
We observe that the Board quite properly does not contend that an employer may never report the presence of an illegal alien employee to the INS. See, e. g., Bloom/Art Textiles, Inc., 225 N. L. R. B. 766 (1976) (no violation of Act for employer to discharge illegal alien who was a union activist where the evidence showed that the reason for the discharge was not the employee’s protected collective activities, but the employer’s concern that employment of the undocumented worker violated state law). The reporting of any violation of the criminal laws is conduct which ordinarily should be encouraged, not penalized. See In re Quarles, 158 U. S. 532, 535 (1895). It is only when the evidence establishes that the reporting of the presence of an illegal alien employee is in retaliation for the employee’s protected union activity that the Board finds a violation of § 8(a)(3). Absent this specific finding of antiunion animus, it would not be an unfair labor practice to report or discharge an undocumented alien employee. See Bloom/Art Textiles, Inc., supra. Such a holding is consistent with the policies of both the IN A and the NLRA.
Finally, petitioners claim that this Court’s recent decision in Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U. S. 731 (1983), mandates the conclusion that their request for enforcement of the federal immigration laws is an aspect of their First Amendment right “to petition the Government for a redress of grievances” and therefore may not be burdened under the guise of enforcing the NLRA. In Bill Johnson’s Restaurants, the Court held that an employer’s filing of a state court suit against its employees seeking damages and injunctive relief for libelous statements and injury to its business is not an enjoinable unfair labor practice unless the suit is filed for retaliatory purposes and lacks a reasonable basis. The Court stressed that the right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government, concluding that the NLRA must be construed in such a way as to be “sensitive” to these First Amendment values. Id., at 741. The Court also noted that the States had a compelling interest in maintaining domestic peace by providing employers with such civil remedies for tortious conduct during labor disputes. If the Board were allowed to enjoin a state lawsuit simply because of retaliatory motive, the employer would “be totally deprived of a remedy for an actual injury,” and the strong state interest in providing for such redress would therefore be undermined. Id., at 742.
The reasoning of Bill Johnson’s Restaurants simply does not apply to petitioners’ situation. The employer in that case, though similarly motivated by a desire to discourage the exercise of NLRA rights, was asserting in state court a personal interest in its own reputation that was protected by state law. If the Court had upheld the Board in the case, it would have left the employer with no forum in which to pursue a remedy for an “actual injury.” Id., at 741. The First Amendment right protected in Bill Johnson’s Restaurants is plainly a “right of access to the courts... ‘for redress of alleged wrongs.’” Ibid. Petitioners in this case, however, have not suffered a comparable, legally protected injury at the hands of their employees. Petitioners did not invoke the INS administrative process in order to seek the redress of any wrongs committed against them. Cf. California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508 (1972). Indeed, private persons such as petitioners have no judicially cognizable interest in procuring enforcement of the immigration laws by the INS. Cf. Linda R. S. v. Richard D., 410 U. S. 614, 619 (1973).
Finally, Bill Johnson’s Restaurants was concerned about whether the Board’s interpretation of the NLRA would work to pre-empt the State from providing civil remedies for conduct touching interests “‘deeply rooted in local feeling and responsibility.’” 461 U. S., at 741 (quoting San Diego
Building Trades Council v. Garmon, 359 U. S. 236, 244 (1959)). Here, where there is no conflict between the Board’s unfair labor practice finding and any asserted state interest, such federalism concerns are simply not at stake. In short, Bill Johnson’s Restaurants will not support petitioners’ efforts to avoid their obligations under the NLRA by reporting their employees to the INS.
I
There remains for us to consider petitioners’ challenges to the remedial order entered in this case. Petitioners attack those portions of the Court of Appeals’ order which modified the Board’s original order by providing for an irreducible minimum of six months’ backpay for each employee and by detailing the language, acceptance period, and verification method of the reinstatement offers. We find that the Court of Appeals exceeded its narrow scope of review in imposing both these modifications.
A
Section 10(c) of the Act empowers the Board, when it finds that an unfair labor practice has been committed, to issue an order requiring the violator to “cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies” of the NLRA. 29 U. S. C. § 160(c). The Court has repeatedly interpreted this statutory command as vesting in the Board the primary responsibility and broad discretion to devise remedies that effectuate the policies of the Act, subject only to limited judicial review. See, e. g., NLRB v. J. H. Rutber-Rex Mfg. Co., 396 U. S. 258, 262-263 (1969); Fibreboard Paper Products Corp. v. NLRB, 379 U. S. 203, 216 (1964); Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 194 (1941). Although the courts of appeals have power under the Act “to make and enter a decree... modifying, and enforcing as so modified” the orders of the Board, 29 U. S. C. §§ 160(e), (f), they should not substitute their judgment for that of the Board in determining how best to undo the effects of unfair labor practices:
“Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board’s discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.” Phelps Dodge Corp., supra, at 194.
See also NLRB v. Seven-Up Bottling Co., 344 U. S. 344, 346 (1953) (power to fashion remedies “is for the Board to wield, not for the courts”).
Here, the Court of Appeals impermissibly expanded the Board’s original order to provide that each discriminatee would receive backpay for at least six months on the ground that “six months is a reasonable assumption” as to the “minimum [time] during which the discriminatees might reasonably have remained employed without apprehension by INS, but for the employer’s unfair labor practice.” 672 F. 2d, at 606. We agree with petitioners that this remedy ordered by the Court of Appeals exceeds the limits imposed by the NLRA.
Not only did the court overstep the limits of its own reviewing authority, see NLRB v. Seven-Up Bottling Co., supra, at 346-347, but it also effectively compelled the Board to take action that simply does not lie within the Board’s own powers. Under § 10(c), the Board’s authority to remedy unfair labor practices is expressly limited by the requirement that its orders “effectuate the policies of the Act.” Although this rather vague statutory command obviously permits the Board broad discretion, at a minimum it encompasses the requirement that a proposed remedy be tailored to the unfair labor practice it is intended to redress. Quite early on, the Court established that “the relief which the statute empowers the Board to grant is to be adapted to the situation which calls for redress.” NLRB v. MacKay Radio & Telegraph Co., 304 U. S. 333, 348 (1938). See D. McDowell & K. Huhn, NLRB Remedies for Unfair Labor Practices 8-15 (1976). Of course, the general legitimacy of the back-pay order as a means to restore the situation “as nearly as possible, to that which would have obtained but for the illegal discrimination,” Phelps Dodge Corp., 313 U. S., at 194, is by now beyond dispute. Yet, it remains a cardinal, albeit frequently unarticulated assumption, that a backpay remedy-must be sufficiently tailored to expunge only the actual, and not merely speculative, consequences of the unfair labor practices. Id., at 198 (“[0]nly actual losses should be made good.. To this end, we have, for example, required that the Board give due consideration to the employee’s responsibility to mitigate damages in fashioning an equitable backpay award. See, e. g., NLRB v. Seven-Up Bottling Co., supra, at 346; Phelps Dodge Corp. v. NLRB, supra, at 198. Likewise, the Board’s own longstanding practice has been to deduct from the backpay award any wages earned in the interim in another job, see Pennsylvania Greyhound Lines, Inc., 1 N. L. R. B. 1, 51 (1935), enf’d, 91 F. 2d 178 (CA3 1937), rev’d on other grounds, 303 U. S. 261 (1938).
By contrast, the Court of Appeals’ award of a minimum amount of backpay in this case is not sufficiently tailored to the actual, compensable injuries suffered by the discharged employees. The court itself admitted that although it sought to recompense the discharged employees for their lost wages, the actual 6-month period selected was “obviously conjectural.” 672 F. 2d, at 606. The court’s imposition of this minimum backpay award in the total absence of record evidence as to the circumstances of the individual employees constitutes pure speculation and does not comport with the general reparative policies of the NLRA.
We generally approve the Board’s original course of action in this case by which it ordered the conventional remedy of reinstatement with backpay, leaving until the compliance proceedings more specific calculations as to the amounts of backpay, if any, due these employees. This Court and other lower courts have long recognized the Board’s normal policy of modifying its general reinstatement and backpay remedy in subsequent compliance proceedings as a means of tailoring the remedy to suit the individual circumstances of each discriminatory discharge. See NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U. S., at 260; Nathanson v. NLRB, 344 U. S. 25, 29-30 (1952); Trico Products Corp. v. NLRB, 489 F. 2d 347, 353-354 (CA2 1973). Cf. Teamsters v. United States, 431 U. S. 324, 371 (1977) (individual Title VII claims to be resolved at remedial hearings held by District Court on remand). These compliance proceedings provide the appropriate forum where the Board and petitioners will be able to offer concrete evidence as to the amounts of backpay, if any, to which the discharged employees are individually entitled. See NLRB v. Mastro Plastics Corp., 354 F. 2d 170 (CA2 1965), cert. denied, 384 U. S. 972 (1966); 3 NLRB Casehandling Manual §10656 et seq. (1977) (preparation of backpay specification).
Nonetheless, as the Court of Appeals recognized, the implementation of the Board’s traditional remedies at the corn-pliance proceedings must be conditioned upon the employees’ legal readmittance to the United States. In devising remedies for unfair labor practices, the Board is obliged to take into account another “equally important Congressional ob-jectiv[e],” Southern S.S. Co. v. NLRB, 316 U. S. 31, 47 (1942) — to wit, the objective of deterring unauthorized immigration that is embodied in the INA. By conditioning, the offers of reinstatement on the employees’ legal reentry, a potential conflict with the INA is thus avoided. Similarly, in computing backpay, the employees must be deemed “unavailable” for work (and the accrual of backpay therefore tolled) during any period when they were not lawfully entitled to be present and employed in the United States. Cf. 3 NLRB Casehandling Manual §§10612, 10656.9 (1977).
The Court of Appeals assumed that, under these circumstances, the employees would receive no backpay, and so awarded a minimum amount of backpay that would effectuate the underlying purposes of the Act by providing some relief to the employees as well as a financial disincentive against the repetition of similar discriminatory acts in the future. 672 F. 2d, at 606. We share the Court of Appeals’ uncertainty concerning whether any of the discharged employees will be able either to enter the country lawfully to accept the reinstatement offers or to establish at the compliance proceedings that they were lawfully available for employment during the backpay period. The probable unavailability of the Act’s more effective remedies in light of the practical workings of the immigration laws, however, simply cannot justify the judicial arrogation of remedial authority not fairly encompassed within the Act. Any perceived deficiencies in the NLRA’s existing remedial arsenal can only be addressed by congressional action. By directing the Board to impose a minimum backpay award without regard to the employees’ actual economic losses or legal availability for work, the Court of Appeals plainly exceeded its limited authority under the Act.
B
The Court of Appeals similarly exceeded its limited authority of judicial review by modifying the Board’s order so as to require petitioners to draft the reinstatement offers in Spanish and to ensure verification of receipt. While such requirements appear unobjectionable in that they constitute a rather trivial burden, they represent just the type of informed judgment which calls for the Board’s superior expertise and long experience in handling specific details of remedial relief. See, e. g., NLRB v. J. Weingarten, Inc., 420 U. S. 251, 266-267 (1975); NLRB v. Erie Resistor Corp., 373 U. S., at 236. If the court believed that the Board had erred in failing to impose such requirements, the appropriate course was to remand back to the Board for reconsideration. NLRB v. Food Store Employees, 417 U. S. 1 (1974). Such action “best respects the congressional scheme investing the Board and not the courts with broad powers to fashion remedies that will effectuate national labor policy.” Id., at 10; see 2 T. Kheel, Labor Law §7.04[3][e] (1984).
The court’s requirement that the reinstatement offers be held open for four years is vulnerable to similar attack. The court simply had no justifiable basis for displacing the Board’s discretionary judgment about the proper time period for acceptance of the reinstatement offers. Rather than enlarging the Board’s remedial order in this fashion, the court was required to remand for the Board to consider the alternative grounds on which the court believed the offers to have been deficient and to decide upon new forms for the reinstatement offers. NLRB v. Food Store Employees, supra.
V
For the reasons given above, we reverse the judgment of the Court of Appeals insofar as it imposed a minimum backpay award and mandated certain specifics of the reinstatement offers. We therefore remand the case to the Court of Appeals with instructions to remand it back to the Board to permit formulation of an appropriate remedial order consistent with this Court’s opinion.
It is so ordered.
Sections 8(a)(1) and (3) of the Act, 61 Stat. 140, as amended, 29 U. S. C. §§ 158(a)(1) and (3), make it an “unfair labor practice” for an employer “(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title” or “(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” Section 7 grants employees the rights of self-organization, participation in labor organizations and concerted activity, and collective bargaining. See 29 U. S. C. § 157.
The Board also affirmed the findings of the ALJ that petitioners had violated § 8(a)(1) of the Act by (1) threatening employees with less work if they supported the Union and promising more work if they did not; (2) interrogating employees about their Union sentiments; (3) threatening the employees immediately after the election to notify the INS because they had supported the Union; and (4) threatening to go out of business because the Union won the election.
The Board’s General Counsel then filed a motion for clarification in which he suggested that the Board’s remedial order might violate national immigration laws by requiring reinstatement and backpay without explicit regard to the legality of the employees’ immigration status. The Board denied the General Counsel’s motion, over the dissents of two members, who argued that the order’s failure to condition the offers of reinstatement on legal presence within this country would encourage illegal reentry by the employees. See Sure-Tan, Inc., 246 N. L. R. B. 788 (1979).
The Board did not issue a new decision regarding the 6-month minimum backpay award, but merely submitted a proposed judgment order that was evidently intended to incorporate the proposed award. Upon reviewing the Board’s proposed order, the court still remained uncertain whether the Board had in fact adopted its suggestion, and so modified the order to make clear that the employees were entitled to a minimum award of six months’ backpay. App. to Pet. for Cert. 28a. A petition for rehearing with suggestion for rehearing en banc was denied, with three judges dissenting. 677 F. 2d 584 (1982).
In extending the coverage of the Act to undocumented aliens, the Board has included such workers in bargaining units, see Duke City Lumber Co., 251 N. L. R. B. 53 (1980); Sure-Tan, Inc., and Surak Leather Co., 231 N. L. R. B. 138 (1977), enf’d, 583 F. 2d 355 (CA7 1978), and has found violations of the Act both in their discriminatory discharge, see Apollo Tire Co., 236 N. L. R. B. 1627 (1978), enf’d, 604 F. 2d 1180 (CA91979); Army's Bakery & Noodle Co., 227 N. L. R. B. 214 (1976), and in threats of deportation intended to deter their union activities, see Hasa Chemical, Inc., 235 N. L. R. B. 903 (1978).
It is by now well established, however, that if the reason asserted by an employer for a discharge is pretextual, the fact that the action taken is otherwise legal or even praiseworthy is not controlling. See NLRB v. Transportation Management, Inc., 462 U. S. 393, 398 (1983). If the Board finds, as it did here, that the otherwise legitimate reason asserted by the employer for a discharge is a pretext, then the nature of the pretext is immaterial, even where the pretext involves a reliance on state or local laws. See, e
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_casetyp1_7-3-3
|
C
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. MALLERS et al. EATON et al. v. MALLERS (two cases).
Nos. 6787, 6788.
Circuit Court of Appeals, Seventh Circuit.
April 19, 1939.
Rehearing Denied June 6, 1939.
Harris F. Williams, Robert C. Baumgartner, Adelor J. Petit, and Adelor J. Petit, Jr., all of Chicago, Ill., for appellants.
Frederick A. Brown and L. M. Hirschtritt, both of Chicago, Ill., for appellee.
Before SPARKS, MAJOR, and TREA-NOR, Circuit Judges.
TREANOR, Circuit Judge.
This is an appeal from an order entered by the District Cqurt in an interpleader suit brought by the plaintiff insurance company to determine the ownership of four policies of insurance, only two of which are involved in this appeal.
The plaintiff insurance company had issued the four policies on the life of John B. Mailers, Jr., payable to his wife, Jennie-Eaton Mailers. The policies were of the-ordinary life plan, with a special absolute-ownership right in the beneficiary. Jennie-Eaton Mailers predeceased her husband and. her estate succeeded to her interest under the policies. Mollie Eaton duly qualified as-executrix under the will of Jennie Eaton. Mailers.
The inventory of the estate showed assets of $1,900.95 in cash, other personal property of the value of $2,018.50, and other assets of questionable value. The estate included four policies of insurance in addition to the four above referred to. The annual premiums payable for each policy amounted, to $1,250, less dividends per policy. Because of the small amount of assets and lack of current estate income the executrix, Mollie-Eaton, found it impossible to pay the premiums as they became due. She was forced to cancel four policies not involved in this suit, and take their cash surrender value.
On September 21, 1933, premiums became due on two policies and the insurer applied accrued dividends in the amount of $481.50 to payment of the premiums, thus-keeping the policies in force until January 10, 1934. On January 8, 1934, Mollie Eaton, executrix, assigned the two policies to John B. Mailers, Jr. The cash surrender value-of the policies as of that date was less than ten ($10) dollars and they would have expired within two days. The assignments-were made in writing which recited as consideration thereof $1 paid and other good and sufficient consideration. Mailers promised to pay to the estate the amount of the dividends ($481.50) which had been applied to the payment of premiums to keep the-policies in force until January 10, 1934.
The assignee, John B. Mailers, Jr., continued to keep the policies in force by payment of premiums and the policies were in-force on the day of his death on July 10, 1934. Charles E. Mailers qualified as executor under the will of John B. Mailers, Jr.,, and he has continued to act as executor from that time. Mollie Eaton, as executrix of the estate of Jennie Eaton Mailers, and Charles E. Mailers, as executor of the estate of John B. Mailers, Jr., filed claims-for the proceeds due under the four pol-icics of insurance. The insurance company, plaintiff herein, filed its interpleader suit against all claimants and paid the proceeds of the policies into court. Thereafter an interlocutory decree was entered by the District Court dismissing out the plaintiff insurance company, and the cause proceeded before the District Court for determination of the rights of the respective claimants. The District Court found in favor of Charles E. Mailers, executor of the estate of John B. Mailers, Jr., on his claim for the proceeds of the two assigned policies, and in favor of Mollie Eaton, executrix of the estate of Jennie E. Mailers, on her claim to the proceeds of the two unassigned policies. Judgment was rendered accordingly. This appeal is from the judgment rendered in favor of Charles E. Mailers, Executor.
The contention of defendants-appellants may be summed up as follows:
1. The assignments of the policies to John B. Mailers, Jr., are void because (a) they were made without prior authorization or subsequent confirmation by an order of the probate court, and (b) because they were made without consideration.
2. The assignments are voidable for the following reasons:
(a) A personal representative cannot sell personal property belonging to an estate on credit;
(b) It is beyond the power of a personal representative to bind the estate by contract, and
(c) A personal representative cannot give away property belonging to an estate.
The first proposition involves provisions of the Illinois statutes regulating the sale of personal property in course of administration of estates. The statute provides for public sale and in addition thereto includes the following clause which is more particularly involved in this suit: “Provided, that any part or all of such personal property may, where so directed by the court, be sold at private sale.”
It is the contention of defendants that the foregoing requires an order of court as a condition precedent to the sale of personal property by private sale. This precise question has. not been decided by the Supreme or Appellate courts of Illinois, but it is unquestioned that under the common law of Illinois a sale without approval of the court “to a bona fide purchaser for a valuable consideration” is valid. The sale can be avoided, if the purchaser knew, or “had good reason to suspect that the sale is made with a design to misapply the funds to the prejudice of those interested in the estate.”
In the case of Christy v. Christy, the heirs at law appealed from an order of the circuit court overruling their exceptions to a report of the administrator on the sale of certain shares of stock. The heirs contended that the price obtained therefor was not adequate. The sale was made without order of the probate court. In affirming the circuit court, but without specific mention of the statute here involved, the Appellate Court said: “It is unquestionably true that, except in rare cases, it is proper and advisable for an administrator, before selling the personal property of his intestate, to obtain authority from the probate court so to do, thus protecting himself, where he has acted in good faith, from the charge of a lack of diligence in obtaining a fair price therefor, but our attention has been called to no authorities holding that a failure to do so imposes upon him a greater degree of diligence than he would be otherwise bound to exercise.” The foregoing decision was affirmed by the Supreme Court of Illinois, but the Supreme Court stated that “the question as to the legality of the sale as between the purchaser and heirs” was not presented “either upon propositions of law submitted or otherwise.”
In Zimmerman v. Dawson complainant sued an executor of an estate to compel the specific performance of an agreement to convey a leasehold interest in real estate which under the law of Illinois was considered personal property. The parties had agreed that the sale was to be subject to the approval of the probate court. The probate court refused to allow* defendant to accept the complainant’s bid, and further ordered the property .to be sold at a public sale. The Appellate Court held that the bill for specific performance could not be maintained. In support of its decision the court makes the following statement: “It is our opinion that the subject-matter of this suit constitutes personal property which could be sold by the executor only upon approval of the probate court, and also that the evidence introduced. on the trial warranted the chancellor in concluding that, whatever may be said as to the character of the property in question, it was agreed by complainants and defendant that the proposed sale thereof was not to be consummated until approved by the probate court of Cook county.”
In view of the facts the decision cannot be said to constitute a holding that an executed sale is void where there is no order of the court forbidding it.
Statutes providing for court supervision of sales of personal property in the course of administration of estates have been construed by courts of some states to require approval as a condition precedent to sales, and in other states to be merely directory and for the protection of the administrator and not to affect his power to pass good title. The latter effect has been attributed to such statutes in Iowa, Massachusetts, Nebraska, New York, North Carolina, South Carolina, Vermont and Wisconsin. In states, such as Illinois, in which the common law rule unquestionably allows such sales and in which statutory provisions do not expressly repeal the common law rule the inquiry is whether the language of the statute repeals the common law rule by implication. In some cases' it is clear by the language used in the statute that the common law no longer applies. Such a case is presented in Interstate Public Service Company v. Weiss, Administrator. In that case the Supreme Court of Indiana held that the transfer of certain shares of stock by an executor without a court order was void. The pertinent language of the statute applicable to the facts of that case is as follows: “Whenever any portion of the estate of any person dying intestate shall consist of stock in a corporation or corporations, and when any person shall die testate owning such stock but making no disposition thereof in his will, the same shall not be sold except under the direction of the proper court; and in the distribution of the estate of the decedent among his heirs or legatees, such stock shall be distributed and transferred to them under the direction of the court.” (Section 6-805, Burns’ Ann.St. 1933.) The language of the Indiana statute reveals a definite legislative purpose to preserve corporate stock for distribution in kind among heirs or legatees; and in order to accomplish this it is necessary to qualify a personal representative’s power to pass title to third persons. When the strong language of prohibition is viewed in the light of the evident purposes, the legislative intent to require approval as a condition precedent to sale is evident. The purpose of the Indiana statute was not primarily to protect the interest of the estate from improper sales, but, for the special benefit of heirs and legatees, to prevent sales, proper or improper, of a particular type of property.
The language of the Illinois statute is of the more general type which has been held to be directory. And although the Supreme Court of Illinois has not construed the language in question, the Appellate Court of Illinois in its opinion in Christy v. Christy, supra, stated that it saw no reason “why he [administrator] had not the power to pass such title at private sale, if made in good faith, although without an order of court.” That the foregoing statement embodies the rule in Illinois under the statute is strongly indicated by the declarations and holdings of the Supreme Court of Illinois on the question of statutory repeal of common law rules by implication.
By legislative enactment the common law of England “shall be considered as of full force until repealed by legislative authority.” Illinois decisions hold that repeal by implication is not to be recognized “unless the implication is absolutely imperative.” In the recent case of People v. West Englewood Trust & Savings Bank the court states that “it is only where there is a clear repugnance between two laws and the provisions of both cannot be carried into effect that the later law must prevail and the former be considered repealed by implication”; and that “it is not enough to justify the inference of repeal of a prior statute that a subsequent statute covers some, or even all, of the questions covered by the former;” and that “there must be an irreconcilable repugnancy.”
Applying the foregoing severe test to the statutory language in question we conclude that the language does not repeal the Illinois common law rule. Our conclusion is reinforced by the statement of the Appellate Court of Illinois in the Christy case.
The trial court found that the assignments were free from fraud and the facts clearly support such finding. At that time the two policies were imposing a premium burden of $2,500 a year on the estate, the total assets of which were valued at less than $4,000. Also the estate was attempting to carry eight policies requiring approximately $10,000 a year in premiums. The two policies in question would have lapsed within 48 hours, and had a cash value of something less than $10. From the standpoint of the executor it was evident that it would be necessary to allow some or all of the policies to lapse, and four of the eight policies were cancelled at a later date. It had been necessary in the preceding September to apply available dividends to keep the two policies in force until January 10, 1934. In addition to her own judgment the executrix had the benefit of legal counsel, and the terms of the transfer to John B. Mailers, Jr., were in accordance with the views of her legal adviser. No question is raised respecting the finding of facts and the facts as found disclose no basis for a conclusion that any other course was available to the executrix to salvage anything from the two policies.
It is also urged that no consideration was given for the assignments and that the assignments were in effect a giving away of assets of the estate. The no-consideration contention rests ultimately upon the assumption that John B. Mailers, Jr., assumed no obligation whatever for the reason that his promise was illusory. It is urged that his promise reduces itself finally to a promise to pay $481.50 if he chooses to keep the policy in force for one year from date of September 21, 1933. The finding of the court respecting consideration is not susceptible of such a loose interpretation. The full finding is as follows: “10. That the consideration for the assignment. of said policies Nos. 3905106 and 3907784 by Mollie Eaton as Executrix aforesaid to John B. Mailers, Jr. was a promise by the assured to pay to Mollie Eaton, as said Executrix, the amount of the dividends which had been applied on said policies to extend as far as possible the life of the said policies from September 21, 1933, to January 10, 1934, said dividends amounting to Two Plundred P'orty and 75/100 Dollars ($240.-75) on each of said assigned policies, or a total of Four Hundred Eighty-one and 50/100 ($481.50), provided that said John B. Mailers, Jr. should keep said assigned policies in force for a period of one year from date of September 21, 1933.”
The finding is more readily understood to be that the assignment is conditioned upon the assignee’s keeping the policy in force for a period of one year. But if it be interpreted to mean that John B. Mailers, Jr., will not be required to pay the $481.50 unless he keeps the assigned policies in force for a period of one year, it is a .condition subsequent and the fact is that he did keep the assigned policies in force for the required period and his promise became absolute and binding upon his estate. It cannot be contended that keeping the assigned policies in force for a period of one year was a condition precedent to Mailers’ giving his promise to pay the $481.50. At most it was a condition precedent to the performance of his promise by actual payment of the amount promised.
The remaining question is whether a sale to a co-beneficiary is valid. In this connection it should be noted that under the will of Jennie Eaton Mailers the deceased left all of her property except certain articles here not material, to her three sisters, Mollie Eaton, the executrix, Sadie D. Eaton, and Eva E. Coombs. John B. Mailers, Jr., the deceased’s husband, received nothing by the terms of the will, but under the law of Illinois was entitled, and did elect, to take his dower interest in the estate, which amounted to one-third of the personalty. As respects some aspects of the situation John B. Mailers, Jr., and the executrix clearly were dealing at arms length. But for purposes of our discussion we shall assume that the sale in the instant case was one by a trustee to a beneficiary. It is the general rule that anyone, including a co-beneficiary, may buy. The general rule is aptly stated as follows: “1. To whom sale may be made: If the trustee has a power of sale, he can properly sell to one of the beneficiaries, provided that the sale is in all other respects proper. Since it is the duty of the trustee in selling trust property to sell it at the best price obtainable, he cannot properly sell it to one of the beneficiaries without the consent of the others for less than its fair value, since this would be a violation of his duty to the other beneficiaries.”
In the case of Fredrick v. Fredrick, the court held that a conveyance of trust property by the trustee could be set aside .where it was conducted in secret, without notice to other beneficiaries, and for a low pricé. But where a valid and sufficient consideration for the conveyance was shown the Supreme Court of Illinois held the trial court properly refused to set the sale aside even though it was to a cestui.
The utmost of good faith must be shown throughout all transactions in which the trustee is dealing with a cestui. In the instant case the District Court found that there was no evidence of fraud, collusion or bad faith. The District Court was convinced that the estate of Jennie Eaton Mailers was financially unable to meet the premiums and that if the assignments had not been made the estate would have lost everything. Instead the estate received Mailers’ promise to pay $481.50 and at a time when the cash surrender value was only $10 and when the estate’s interest in the policies, as a beneficiary, in all human probability would have been wiped out completely within 48 hours. There is nothing in the finding of facts to suggest that any of the co-beneficiaries was in a position, or would have been willing, to purchase the policies or to aid in saving them for the estate. In considering the question of fairness it is not without significance that John B. Mailers, Jr., the assignee; had furnished the money to Jennie Eaton Mailers during her lifetime to pay the premiums which had kept four policies.in force prior to Jennie Eaton Mailers’ death. The court so found but also properly stated as a conclusion of law that such advancement to pay premiums did not give Mailers or his executors any right in or to the proceeds of said policies. During the lifetime of John B. Mailers, Jr., the assignee, no interested party took any action in the probate court to question the assignments. In the present action the objectors’ position is somewhat anomalous. They ask that the assignments to Mailers be set aside and yet ask for the fruits of Mailers’ performance of his obligation under the assignment agreements. It is not the case of a beneficiary’s asking that a transaction between the trustee and a co-beneficiary be set aside and the trust property, or its value, be restored to the trust assets; but under the facts the relief sought is an enrichment of the trust assets to the extent of the windfall advantage which came to Mailers’ estate by reason of the early death of John B. Mailers, Jr. On the basis of the facts as found the actual value of the assets given up by the estate as a result of the assignments was $10. In return for that it secured the obligation of the as-signee to pay $481.50. There is no evidence that the executrix or anyone else had any reason to anticipate the early demise of the insured. From the standpoint of the estate the assignments were relieving it from an obligation to pay approximately $2,500 a year, and at a time when the estate obviously was unable to carry the premium burden of the policies which it held. Clearly the District Court was justified in its finding that there was no fraud in the procuring of the assignments and “that said Mollie Eaton as executrix as aforesaid exercised good judgment in making said assignments, and that they were for the benefit of the Estate of Jennie Eaton Mailers, Deceased.”
It is contrary to the facts to say that any loss was sustained by the beneficiaries of the trust as a result of the assignments.
The judgment of the District Court is affirmed.
An appeal was taken to this Court from the interlocutory decree and the decree was affirmed. Mailers v. Equitable Life Assurance Society of the United States, 7 Cir., 87 F.2d 233, certiorari denied 301 U.S. 685, 57 S.Ct. 786, 81 L.Ed. 1343.
Illinois Revised Statutes, 1937 Ed. Ch. 3, §§ 92, 93, 94.
McConnell v. Hodson et al., 2 Gilman 640; Dwight v. Newell, 15 Ill. 333; Makepeace v. Moore, 10 Ill. 474, 5 Gil-man 474; Walker v. Craig, 18 Ill. 116.
125 Ill.App. 442.
225 Ill. 547, 80 N.E. 242, 243.
222 Ill.App. 212.
24 C.J. 209.
208 Ind. 122, 193 N.E. 226.
Illinois Revised Statutes Ch. 28, Sec. 1 (1937).
Smith v. Laatsch, 114 Ill. 271, 279, 2 N.E. 59, 63.
353 Ill. 451, 460, 187 N.E. 525, 529.
24 C.J. 217.
Restatement of Trusts, Sec. 190 (1).
219 Ill. 568, 76 N.E. 856.
Palliser v. Mills, 339 Ill. 568, 171 N.E. 618.
3 Bogert, Trusts and Trustees, § 493.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
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songer_treat
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Plaintiff-Appellee, v. Jerome JACKSON, Defendant-Appellant.
No. 77-1796.
United States Court of Appeals, Seventh Circuit.
Argued Jan.' 26, 1978.
Decided March 29, 1978.
Gerald F. Murray, Chicago, 111., for defendant-appellant.
Thomas P. Sullivan, U. S. Atty., Candace Fabri, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
Before FAIRCHILD, Chief Judge, PELL and SPRECHER, Circuit Judges.
PELL, Circuit Judge.
The defendant was charged in count one of a three count indictment with distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1). Specifically, the defendant was charged with distributing 20 grams of a mixture containing heroin on November 9,1976. He was found guilty by a jury and was sentenced to five years in the custody of the Attorney General to be followed by the mandatory three year special parole term codified in 21 U.S.C. § 841(a)(1). The district judge suspended execution of that sentence, placing the defendant on probation for a period of five years with the first 120 days to be spent in the Metropolitan Correctional Center.
The defendant appeals on the grounds that the district court erred in admitting evidence of his flight and in instructing the jury on the weight to be given such evidence, that the Government’s failure to respond to a bill of particulars deprived the defendant of his right to be apprised of the charges against him and an opportunity to defend against those charges, and that the sentence imposed by the district court was improper.
Although the defendant personally testified at the trial, denying any involvement in the distribution charged in the indictment, taking the evidence in the light most favorable to the Government, it is as follows.
For the better part of the year prior to the November distribution date, the defendant had had a friendly relationship with one Wilson Velasquez, who, unknown to the defendant, had been successfully recruited by federal narcotics agents to act as a confidential informant following his own arrest for selling narcotics to one of the agents. Velasquez did not testify at the Jackson trial. On November 9, 1976, Velasquez called Drug Enforcement Administration (DEA) agent Hacías, and pursuant to a prearranged plan, Hacías obtained $1,050 in official government funds for a proposed drug transaction. Agent Hacías and agent Sanchez met Velasquez who gave them a drug sample which he said he received that morning. Agent Sanchez and Velasquez drove in an undercover government car to the defendant’s residence and sounded the horn. Jackson walked out and told them that the man had already called and would call back. When the defendant received the call, he told them to follow him to the EZ Go Gas Station.
When they arrived at the gas station, Jackson said, “The man is here. Be cool. The nares are around.” The defendant then met Massey about one half block from the gas station and together they approached the government car. Massey entered the ear where Sanchez and Velasquez were seated. While Massey sold Sanchez 20 grams of a mixture containing heroin, the defendant stood at the side of the car, looking around the area, occasionally poking his head inside the car. Sanchez and Velasquez asked the defendant if he could “do a pound next time,” to which the defendant answered that he would work on it. Massey exited the car and met with the defendant briefly before they left the area.
Approximately one week after this transaction, Sanchez called Jackson at his residence, identifying himself as “Ramone,” his undercover name. He asked Jackson what had happened to the pound. The defendant responded that he was still checking and would get back to him. Several weeks later, the defendant called Sanchez at the undercover DEA telephone number which he had been given by Sanchez and Velasquez. The defendant said he was “still checking on the thing.” A few weeks later, Sanchez phoned Massey at Massey’s number. During that conversation Massey said, “Talk to my man, he is over here.” Sanchez identified the voice of the person to whom he then spoke as that of Jackson. Again Sanchez inquired about the pound of heroin, and was told that the speaker was working on it. None of these conversations was followed by a transaction.
Pursuant to an arrest warrant, DEA agents Hacías, Streicker, Hayes, and Furay went to the defendant’s residence to arrest him on February 17, 1977. At approximately 10:30 a. m. three of the agents knocked at the front door announcing, as they did so, their office and purpose. Meanwhile, Furay had been posted at the back of the residence and he observed the defendant exit through the back door and run down the stairs. Agent Furay yelled “Freeze, Police,” whereupon Jackson ran back up the stairs into his apartment where he was arrested.
The defendant first argues that the district court’s admission into evidence of his alleged flight and the jury instruction on flight constituted prejudicial error requiring reversal. Although the defendant’s explanation of his "flight” was that he ran out the back door to walk his dog, we are of the opinion that the evidence clearly indicates that his conduct can be characterized as an attempt to flee from the authorities. At issue, however, is whether this evidence was erroneously admitted and whether it justified an instruction to the jury that flight may tend to prove consciousness of guilt.
This court has, on numerous occasions, approved the admission of flight evidence under the general rule that flight of the accused may be admissible as evidence of consciousness of guilt and thus of guilt itself. See, e. g., United States v. Hampton, 457 F.2d 299, 303 (7th Cir. 1972), cert. denied, 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101; United States v. Crisp, 435 F.2d 354, 359 (7th Cir. 1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971); United States ex rel. Miller v. Pate, 342 F.2d 646, 649 (7th Cir. 1965), rev’d on other grounds, 386 U.S. 1, 87 S.Ct. 785,17 L.Ed.2d 690 (1967). We have never had occasion, however, to define the bounds of this doctrine, nor have we articulated in any depth the analysis underlying our application of it. The present case, which involves Jackson’s flight 3V2 months after the pertinent crime and without knowledge on his part that he was being sought for the crime, compels us to define more specifically the scope of the flight doctrine. We are aided substantially in this task by a recent Fifth Circuit opinion.
In United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977), the court stated that the probative value of flight as circumstantial evidence of guilt depends on the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. The court also noted that
[t]he use of evidence of flight has been criticized on the grounds that the second and fourth inferences are not supported by common experience and it is widely acknowledged that evidence of flight or related conduct is “only marginally probative as to the ultimate issue of guilt or innocence.”
Id. [citations omitted]. Indeed, the Supreme Court has expressed its lack of confidence in the probative value of flight evidence. In Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963), the Court remarked that
we have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime. In Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 40 L.Ed. 1051, this Court said: “. . . it is not universally true that a man, who is conscious that he has done a wrong, ‘will pursue a certain course not in harmony with the conduct of a man who is conscious of having done an act which is innocent, right and proper;’ since it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that ‘the wicked flee when no man pursueth, but the righteous are as bold as a lion.’ ”
In light of this doubt as to the probative value of flight evidence, we are of the opinion that although its use may be proper in many cases, its admission, especially followed by a jury instruction, should be regarded with caution.
Turning to the propriety of its admission and the accompanying jury instruction in the present case, we are immediately troubled by the weakness of the third inference set forth in Myers, from consciousness of guilt to consciousness of guilt concerning the crime charged. The defendant’s attempt to flee in the present case occurred when the agents knocked on his door just prior to his arrest. This was nearly 3V2 months after the crime. The record fails to reflect that Jackson had any reason to believe that he was being sought for the crime charged.
On the occasion of Jackson being sentenced, the district court judge expressed the thought that Jackson had “led a reasonably law-abiding life,” that he had three charges but no convictions for felonies. Just why he was “skitterish” of the police and became “quite panicky” when the pounding on his door by the agents occurred, as reflected in his testimony, is at best a matter of conjecture. It is clear, however, that the substantial lapse of time since the happening of the incident at the EZ Go Gas Station diminishes substantially the likelihood that his precipitous departure was equated in his thinking with the earlier incident, irrespective of the extent of his culpable participation in that incident. We do not propose, however, to establish a standard that evidence of flight is properly admitted only if the defendant knows he is being sought for the specific crime charged. See United States v. Malizia, 503 F.2d 578 (2d Cir. 1974), cert. denied, 420 U.S. 912, 95 S.Ct. 834, 42- L.Ed. 843 (1975). But as the interval between the crime charged and the flight expands, evidence of the defendant’s knowledge that he is being sought for the crime becomes an increasingly important factor in the propriety of drawing the inference from consciousness of guilt to consciousness of guilt concerning the crime charged.
Thus, it is not surprising that courts addressing the question have placed great significance on the proximity in time of the flight to the crime charged. In Myers, supra, the evidence of flight was that 'federal agents were unable to make contact with the defendant at his residence for three weeks after the crime, that he had his girlfriend bring his clothing from her house to a rendezvous point in a shopping center, that he fled when an unidentified man ran toward him at the shopping center, and that he left the state between three and six weeks after the date of the robbery. In holding this evidence insufficient to support a flight instruction, the court noted that:
[t]he immediacy requirement is important. It is the instinctive or impulsive character of the defendant’s behavior, like flinching, that indicates fear of apprehension and gives evidence of flight such trustworthiness as it possesses. See generally Hutchins & Slesinger, Some Observations on the Law of Evidence— Consciousness of Guilt, 71 U.Pa.L.Rev. 725, 734-35 (1929). The more remote in time the alleged flight is from the commission or accusation of an offense, the greater the likelihood that it resulted from something other than feelings of guilt concerning that offense.
Id. at 1051, Conversely, of course, the importance of the immediacy factor would be greatly diminished, if not rendered irrelevant, when there is evidence that the defendant knows that he is accused of and sought for the commission of the crime charged.
In United States v. White, 488 F.2d 660, 662 (8th Cir. 1973), the defendant fled when confronted by a federal agent five months after the crime. There was no evidence that the defendant knew at the time of his flight that he was being sought for the crime charged, nor was the defendant advised that he was accused of the crime when the federal agent confronted him. In these circumstances, the Eighth Circuit found error in the trial court's giving of a flight instruction and stated that if the inference of guilt to be drawn from flight is to have any validity, “the trial court should assure itself that some evidence exists regarding an accusation of the specific crime charged before instructing the jury that flight may be considered in its determination of guilt.” Id.
Although we are unwilling to restrict the scope of the flight doctrine in all cases as severely as did the Eighth Circuit in White, in cases in which a defendant’s flight occurs a substantial time after the crime, we will place significance on a defendant’s knowledge that he is accused of or sought for the crime charged. In such cases, if there is no evidence, neither direct nor circumstantial, that the defendant had the requisite knowledge, as in the present case, we are of the opinion that giving a flight instruction constitutes error. In the event there is such evidence, and the factual situation otherwise would justify jury consideration, it appears to us that the Dev-itt and Blackmar instruction is preferable to the LaBuy. That instruction reads in pertinent part:
The intentional flight or concealment of a defendant immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not of course sufficient in itself to establish his guilt; but is a fact which, if proved, may be considered by the jury in the light of all other evidence in the case, in determining guilt or innocence.
1 Devitt and Blackmar, Federal Jury Practice and Instructions § 15.08, 460-61 (3d ed. 1977) [emphasis added].
The Government argues that certain conversations between the defendant and agent Sanchez which occurred after the crime charged and before the defendant’s backdoor departure, in which Sanchez attempted unsuccessfully to get the defendant to sell him heroin, somehow closed the gap between the crime charged and the defendant’s flight. Although the Government does not articulate how these two or three drug-related conversations linked the crime charged to the flight approximately two months thereafter, it apparently is suggesting that these conversations, admittedly not constituting a crime, sustained the defendant’s consciousness of guilt as to the crime charged so as to neutralize the effects of the 3½ month interval. This theory might be persuasive if Sanchez had been one of the federal agents who had pounded on the door seeking admission, and if there had been in that event an opportunity for Jackson to identify Sanchez as a part of the group demanding entrance in the name of the law. Sanchez, however, was not involved at the time of the arrest, and therefore we reject the Government’s argument.
Having determined that the admission of the evidence and the giving of the instruction was error in the present case, we must further decide whether a reversal is required. Procedurally, as far as the record before us discloses, it would appear that our choice is between harmless or plain error. Rule 52, Fed.R.Crim.P. In the opening statement of the Government counsel, she stated that she expected the evidence to show that on February 17 when Jackson was arrested he attempted to flee. Defense counsel immediately objected on the ground of immateriality. The court indicated he would rule on the evidence when it was offered and the matter was not pursued further.
The first prosecution witness was agent Hacias. When his attention was directed to February 17, defense counsel objected to the particular line of questioning and asked to explain his objection at a side bar conference. Such a conference was held but was not stenographically reported. In his reply brief, the defendant asserts that at an unreported side bar conference, presumably the one to which reference has just been made, the trial judge preliminarily overruled the objection. Having neither the nature of the objection nor the judge’s ruling before us, we are unable to say that error was preserved by the side bar proceedings. The defendant argues in his reply brief that because of this overruling, it would have been futile to object further. Counsel who desire to place reliance upon court proceedings should be certain that those proceedings become a part of the record. In any event, when agent Furay testified as to the events on the back steps the testimony went in without objection.
At the time the court considered the objections to jury instructions, the record from the defendant’s perspective, was not bettered. The only objection stated was that there was no real evidence of flight, that it would be “stretching the term to consider that a flight.” Inasmuch as this ambiguous objection, while perhaps including objection on the basis that Jackson was not fleeing in the legal sense of being conscious of the crime of which he,was to be charged, also is certainly susceptible of an interpretation of a claim that the momentary trip down the stairs was not an attempt to avoid the agents. If the judge had so interpreted the objection, he may well have thought that the matter should properly be permitted to go to the jury.
It was not until the motion, for a new trial was filed on June 27, 1977, that the defense specifically on the record objected to the flight issue handling on the basis that too much time had elapsed and that the defendant was unaware that he was being accused of the crime with which he was charged at the time of the claimed flight. The district court did not deny the motion for a new trial until August 8, 1977, subsequent to the sentencing (July 25,1977) and to the filing of the notice of appeal (August 4, 1977). In our opinion, the sentencing should have been deferred until after the rulings on the post-conviction motions, and the motion for a new. trial should have been granted. Cf. United States v. Bell, No. 77-1794, 572 F.2d 579 (7th Cir. March 2, 1978) (motion to withdraw guilty plea should be ruled on before sentencing).
Looking at the record as a whole we are persuaded that under the circumstances of this particular case, the error is plain and requires reversal. The trial judge characterized the evidence as circumstantial and equivocal, as indeed it was. The defendant who did testify at the trial emphatically denied any involvement in the use or sale of any narcotics at any time. While this might reasonably be expected if he did take the stand, his testimony was not incredible and the decisive factor in the jury ultimately disbelieving him could well have been because of the flight issue. Finally, and tipping the balance in favor of reversal, is the emphasis on the matter of flight in the final argument of the Government in which it was mentioned at five different points. On one occasion, the evidence was clearly twisted, if not misstated: “Finally, I would mention what he did when he was arrested. He ran. There is little question what he was trying to do.” While Jackson made his exit on the morning he was arrested, it was before the officers arrested him. Further in view of the unquestioned law that the flight evidence is only admissible when it has some nexus with the crime charged, the Government’s argument after earlier referring to the flight as “a very important piece of evidence,” in a final reference put an improper slant on the evidence.
All the while they [the agents] were there they were saying “Federal agents-Federal agents.” This guy was high-tailing it out the back door. Why was he high-tailing it if he didn’t do anything? You are not that scared of the police. If police come to your door and you are a law-abiding citizen you let them in and you find out what the problem is.
Aside from the questionable practice of asking the jury to put themselves in the position of a litigating party, the basis for the evidence was not whether he had done “anything.” Indeed, even if he were not a law-abiding citizen, and did flee, the evidence thereof would not be proper for consideration unless it had some connection with fleeing to avoid apprehension for the crime as to which the evidence was to be admitted. Otherwise, the flight evidence could be used to punish the “wicked.” McCormick, supra note 5.
It is unlikely that the other claimed errors will occur in the event the Government elects to continue the prosecution in a new trial.
For the reasons hereinbefore set out the judgment of conviction is reversed and this cause is remanded for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
. Jackson’s co-defendant, John Massey, was charged in all three counts; however, he was not tried with Jackson as he was a fugitive at the time of trial. We have been advised that subsequent to the trial from which the present appeal stems, Massey was apprehended and has since pled guilty to two counts of the indictment, including the count naming Jackson.
. When Jackson was placed under arrest, a ' paper written by him bearing the DEA telephone number and the name Ramone was taken from him during the process of a search. This was introduced into evidence.
. The defendant’s explanation is unpersuasive. The evidence indicated that when he ran out the back door, allegedly going to walk his dog, he was wearing only his pants. The presence or absence of the dog on the day in question was not established although Jackson testified that his dog was in the back and slept by the back door. In any event, Jackson’s behavior, occurring while he was practically unclothed, would appear to be unlikely in Chicago during the month of February.
. The district court used the LaBuy instruction, 33 F.R.D. 586, and instructed the jury as follows:
Flight of the accused, after a crime has been committed, does not create a presumption of guilt. It is, however, a circumstance which may tend to prove consciousness of guilt, and should be considered and weighed by the jury in connection with all the other evidence. The weight to be given evidence of flight depends upon the motives which prompted it, and all of the surrounding facts and circumstances.
. This precise problem has been raised as a criticism to the introduction of flight evidence in these circumstances.
[I]n many situations, the inference of consciousness of guilt of the particular crime is so uncertain and ambiguous and the evidence so prejudicial that one is forced to wonder whether the evidence is not directed to punishing the “wicked” generally rather than resolving the issue of guilt of the offense charged.
McCormick’s Handbook of the Law of Evidence § 271 at 655-56 (2d ed. E. Cleary 1972).
. Accord Embree v. United States, 320 F.2d 666 (9th Cir. 1963) (defendant’s flight constitutes neither admission nor evidence of guilt because no evidence that he was informed before his flight that he was being sought for the offenses charged). Cf. Shorter v. United States, 412 F.2d 428 (9th Cir. 1969), cert. denied, 396 U.S. 970, 90 S.Ct. 454, 24 L.Ed.2d 436 (defendant's flight three weeks after bank robbery admissible where, although apparently not necessary, there was “ample evidence to indicate that he did know he was being sought for the bank robbery”).
Some state courts have used the restrictive standard set forth in United States v. White. See, e. g., People v. Harris, 23 Ill.2d 270, 273, 178 N.E.2d 291, 293 (1961) (“[t]he inference of guilt that may be drawn from flight depends upon the knowledge of the culprit that the crime has been committed and that he is or may be suspected”).
. After the revelation of Sanchez’s true identity, Jackson could have related him to the crime charged and bridged the gap in his thought processes sufficiently to trigger his consciousness of guilt for that crime.
. The defendant had also filed on June 27, 1977, a motion for judgment of acquittal after discharge of the jury.
. We note again the efforts of the agents to involve Jackson directly in a transaction, There is an arguable inference from these endeavors that the Government itself regarded the November transaction as borderline insofar as Jackson was concerned.
. Counsel had already devoted earlier in the argument a full paragraph to the flight, occupying some fifteen lines- of the transcript. Also the reference lacked finality as it was mentioned three more times.
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_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Julius RUDERMAN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Nos. 69, 70, Docket 29717, 29718.
United States Court of Appeals Second Circuit.
Argued Oct. 26, 1965.
Decided Jan. 18, 1966.
Hyman Roffe, New York City (Morris A. Kaplan, New York City, on the brief), for plaintiff-appellant.
Martin T. Goldblum, Department of Justice, Washington, D. C. (Joseph P. Hoey, U. S. Atty. for Eastern District of New York, Brooklyn, N. Y., John B. Jones, Jr., Acting Asst. Atty. Gen., Lee A. Jackson and Meyer Rothwacks, Department of Justice, Washington, D. C. on the brief), for defendant-appellee.
Before LUMBARD, Chief Judge, SMITH, Circuit Judge, and LEYET, District Judge.*
LUMBARD, Chief Judge:
Julius Ruderman brought this refund suit to recover interest charges assessed against him as transferee of the assets of * Sitting by designation.
D. I. Stone Co., Inc., and paid under protest. The district court denied the claim and we affirm that denial.
All the facts have been stipulated. During the years 1943-1945, Ruderman was the president and 50% stockholder of D. I. Stone Co., Inc., a New York corporation engaged in the manufacture and sale of ladies blouses. Wishing to maintain production despite wartime shortages, Stone purchased some of its material on the black market at prices above the O. P. A. maxima. The illegal purchases were not recorded on Stone’s books and, when the finished products were sold, some of the sales were not recorded either. The receipts from these unrecorded sales were retained by Ruder-man and allegedly disbursed in amounts approximating the total unrecorded sales receipts. The corporation took no corresponding income tax deduction.
On March 2, 1954, a statutory notice of deficiency (90-day letter) was sent to Stone for taxes plus penalties aggregating $356,035.40, attributable to the unreported sales during the years 1943-1945. On the same day, 90-day letters were sent to Ruderman and his wife for taxes plus penalties for the year 1943 aggregating $18,058.92 and to Ruder-man alone for taxes plus penalties aggregating $56,396.28 for the years 1944-1945, attributable to Ruderman’s alleged receipt of distributions from Stone, in the nature of dividends, which were not reported as income.
Ruderman and Stone petitioned the Tax Court for a redetermination of the alleged deficiencies. Prior to the taking of testimony, the question of offsets or allowances for cash actually paid to the suppliers was raised by the court. Since the Commissioner had allowed nothing for these payments even though Ruder-man had alleged that they approximated the total unrecorded sales income, the court suggested an adjournment to determine whether a compromise and settlement could be effected.
The parties held several conferences concerning the matters then before the Tax Court as well as the question of Ruderman’s transferee liability and, on May 27, 1956, the parties entered into stipulations that Stone was liable for taxes plus penalties aggregating $205,-943.40 and that Ruderman was personally liable for taxes plus penalties aggregating $30,980.54. These stipulations were filed with the Tax Court on June 1, 1956 and a decision was entered accordingly.
On the same day the parties entered into the above stipulations, Ruderman’s counsel attempted to dispose of the alleged transferee liability by submitting a Form 870-AD wherein it was proposed that the entire transferee liability alleged against Ruderman be reduced to $62,072.70.
After the Form 870-AD was executed by the parties, an audit statement was prepared by the I. R. S. and forwarded to Ruderman. On August 3, 1956, Ruder-man was notified that there had been assessed against him, as transferee of Stone’s assets, taxes and fraud penalties totaling $62,072.70 plus interest in the amount of $24,077.40 computed from the respective due dates of the 1944 and 1945 income tax returns of Stone to the date of assessment which was August 3, 1956.
Ruderman made payments in complete discharge of his personal and transferee liability. Payment of the $24,077.40 which had been asserted as interest on the transferee liability was made under written protest. On November 9, 1961, Ruderman filed claims for refunds of the payments made on the interest charges and then commenced two actions for refunds which were later consolidated for trial.
Ruderman first argues that the government’s acceptance of his offer to settle the transferee liability constituted a compromise and settlement or an accord and satisfaction of the total liability under New York law, and thus, no interest charges could be asserted against him. The district court held that “the parties had contemplated the payment of interest as allowed by law” and had not intended the government’s acceptance of the Form 870-AD to preclude either further claims by the government or challenges thereto by Ruderman. We agree.
United States v. Prince, 348 F.2d 746 (2 Cir. 1965) is authority for the proposition that the nature of the Form 870-AD agreement is a matter of federal rather than state law. We held in Prince that the Form 870-AD is neither a closing agreement nor is it a compromise and that the government may assert further liability subsequent to its acceptance of the Form.
Ruderman’s second argument is that “actual fraud,” a sine qua non to the government’s assertion of interest liability, was not shown, and thus the interest charges are not permissible. The district court held that on the basis of the stipulated facts, Ruderman’s participation in the fraud as determined by New York law could be inferred and that interest was properly chargeable.
Both plaintiff and the government agreed in the district court that the question of whether Ruderman, as transferee, was liable for interest was dependent upon New York law. The government concedes in its brief that it is bound here by that concession with the caveat that it “wishes to leave the issue open for other cases.” Accordingly, on the strength of the concession, which we feel constrained to honor, we look to the New York law.
The leading New York case is MacIntyre v. State Bank of Albany, 307 N.Y. 630, 120 N.E.2d 832 (1954) which held that, absent actual fraud, interest runs from the time of demand. However, contrary to Ruderman’s assertions, actual fraud is not limited to fraudulent conveyances which fall within the definitions of § 276 of New York’s Debtor and Creditor Law, McKinney’s Consol.Laws, c. 12, but may include transfers which are denoted as “constructively fraudulent” and which fall, for example, within § 273 of the Debtor and Creditor Law or § 15 of the Stock Corporation Law, McKinney’s Consol.Laws, c. 59.
Ruderman, the president and 50% owner of D. I. Stone, stipulated that the corporation did not record all the purchases and sales in Stone’s tax returns for the years 1944 and 1945. We think that the stipulations admitting a scheme to evade the O. P. A. price ceilings and the stipulations admitting a wilful failure to report these transactions in federal income tax returns will support an inference of actual fraud, as that term is used under New York law to determine whether interest will be assessed from the date of the transfer.
Affirmed.
. 26 U.S.C. § 6901 provides as follows:
“Transferred assets
(a) Method of collection.- — The amounts of the following liabilities shall, except as hereinafter in this section proyided, be assessed, paid, and collected in the same manner and subject to the same provisions and limitations as in the case of the taxes with respect to which the liabilities were incurred:
(1) Income, estate, and gift taxes.—
(A) Transferees. — The liability, at law or in equity, of a transferee of property—
(i) of a taxpayer in the case of a tax imposed by subtitle A * * »
. The other 50% was owned by one Goodman, whose liabilities were assessed to be exactly the same as those of Ruderman, and who paid, but has chosen not to seek a -refund.
. Declared-value Excess Excess Income Tax Profits Tax Penalty Profits Tax Penalty
$1,342.60 $23,686.31 $15,622.06 $201,872.57 $113,511.86
. Additional Income Tax Penalty
$12,039.28 $6,019.64
. Additional Income Tax Penalty
$37,597.52 $18,798.76
. The notice for 1943 was sent to Ruder-man and Ms wife because they filed a joint return in that year while Ruder-man filed separate returns in 1944 and 1945.
. On December 15, 1953, the District Director of Internal Revenue had sent a 30-day letter to Ruderman proposing an assessment of $135,545.63, plus interest as provided by law, constituting his alleged liability as transferee of Stone’s assets for taxes plus penalties for the years 1943-1945. No notice of deficiency was ever issued by the Commissioner, hence the transferee liability was not before the Tax Court.
. Income Tax Declared-value Excess Profits Tax Penalty Excess Profits Tax Penalty
$2,728.69 $9,527.24 $6,950.68 $114,903.34 $71,833.4'
. The decisions of the Tax Court set forth the deficiencies in tax and the penalties as follows:
Year Income Tax Penalties
1943 $10,651.56 $5,325.78
1944 $ 6,241.46 $3,120.73
1945 $10,376.02 $5,188.01
. Dorm 870-AD is entitled “Offer of Waiver of Restrictions on Assessments and Collection of Deficiency in Tax and of Acceptance of Overassessment.”
. Income TaxPenalty Total
Total $36,583.96 $25,488.74 $62,072.70
. 26 U.S.C. § 7121 governs the validity of closing agreements and 26 U.S.C. § 7122 governs the validity of compromises.
. “Debtor-Creditor Daw of the State of New York;
Sec. 273. Conveyances by insolvent. Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration.
Sec. 276. Conveyance made with intent to defraud.
Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors.
Sec. 15. Prohibited transfers to officers, stockholders, directors or creditors.
No corporation which shall have refused to pay any of its notes or other obligations, when, due, in lawful money of the United States, nor any of its officers or directors, shall transfer any of its property to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any other consideration than the full value of the property paid in cash.”
. The burden of proof on the issues of fraud penalties and interest liabilities is with the government. United States v. Prince, supra; Paddock v. United States, 280 P.2d 563 (2 Cir. 1960); 26 U.S.C. § 7454. It is of no import that the government based its case solely on facts which were stipulated to before the district court because “ * * * [i]f such stipulations establish the Commissioner’s burden of proof, he need do no more.” Kreps v. C. I. R., 351 F.2d 1 (2 Cir. 1965).
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_casetyp1_6-3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. George TURNER, Defendant-Appellee.
No. 14311.
United States Court of Appeals Seventh Circuit.
April 7, 1964.
Charles Donahue, Sol., U. S. Dept. of Labor, Washington, D. C., Herman Grant, Regional Atty., U. S. Dept. of Labor, Chicago, Ill., Bessie Margolin, Associate Sol., Robert E. Nagle, Jack H. Weiner, Attys., U. S. Dept. of Labor, Washington, D. C., for appellant.
Burl F. Nader, Libertyville, Ill., for appellee.
Before DUFFY, CASTLE and SWYGERT, Circuit Judges.
DUFFY, Circuit Judge.
This suit was brought by the Secretary of Labor under Section 16(c) of the Fair Labor Standards Act, pursuant to the written request of Martin Halma, a former employee of defendant. The suit sought to recover $488.20 in unpaid overtime compensation.
At the close of plaintiff’s case, the District Court granted the motion of the defendant for a directed verdict. In explanation of such action, the Court said: “In the light of that record, with the beneficial plaintiff saying on one oecasion that everything was square and then two months later making a claim, and then at the trial saying he doesn’t know how much is owing, I feel that you would be unable to go into the jury room and arrive at any amount. * * * ”
f Previously the Court had asked Mr. Halma several questions:
“The Court: How much money do you say now that Mr. Turner owes you?
“The Witness: What the letter said, your Honor.
“The Court: I say — read the question to the witness.
“(Question read by the reporter.)
“The Witness: I do not know.
“The Court: You don’t know how much money you have coming. That is all. You may step down.”
Defendant is a contract mail carrier for the United States Postoffice Department. During the period covered by this action, April 1, 1960 to July 15, 1961, he employed complainant Halma principally on a regularly scheduled route between McHenry, Illinois and Chicago. At first, Halma was paid a straight weekly salary. Statutory overtime wages were not paid to him for hours worked in excess of forty hours a week until after the period covered by this action.
The evidence presented by the Secretary to establish the number of hours work done by claimant showed that during the period April 1, 1960 to October 28, 1960, the schedule for the ChicagoMcHenry route called for departure from the McHenry postofiice at 6:40 p. m. and arrival at Chicago Suburban Truck Terminal at 9:30 p. m., with intermediate stops being made on the way. This was followed by a return trip leaving Chicago at 2 a. m. and arriving at McHenry at 5 a. m. This schedule was followed daily except Sundays and some holidays.
In following this schedule, claimant testified he would begin his work day with arrival at 5:30 p. m. at a DX Service Station where defendant’s tractor and trailer were kept. After gassing and oiling the tractor, he would drive approximately one and a half miles to McHenry postofiice where he loaded the mail that was to be loaded on the truck. Claimant’s scheduled departure time was 6:40 p. m. After arriving in Chicago, he would await his turn in line and unload the tractor and would then spot the vehicle in back of the postofiice loading dock. He would complete this about 10:05 p. m. He then started to work again at the scheduled time of 2 a. m. the following morning. After arrival at McHenry and unloading the mail, he returned the vehicle to the DX station, usually arriving there about 6 a. m.
There was additional testimony about extra hours worked due to breakdowns of the truck and other delays such as that caused by a dead battery. There was further testimony of hours worked in the period October 29, 1960 to February 9, 1961 where there were extra mail runs and some twenty-one extra trips were confirmed by postoffice memoranda as occurring during the 1960 Christmas holiday season. Other testimony covered the period from February 10, 1961 to July 15, 1961.
In an attempt to demonstrate the method for computing the wages due on the basis of overtime hours worked, the Secretary called as a witness one Max Packer who, for twenty-four years, had been a wage-hour investigator under the Fair Labor Standards Act and who had conducted some two thousand investigations including the investigation of defendant’s compensation practices. However, upon objection by defendant, the Court would not permit Mr. Packer to testify as to the computations he had made of wages due the claimant, nor was he allowed to explain to the jury how such computations may be made.
In the situation before us, we consider the evidence most favorable to the plaintiff. Sufficient evidence was received so that this case should have been submitted to the jury for its verdict. The claimant’s testimony, supported by other evidence, indicated that he had regularly worked 52 to 53^2 hours per week; 50 to 52 hours per week; and 48 to 50 hours per week during the three periods covered by this suit.
Undoubtedly there was some uncertainty as to the exact amount of damages, but it is well established that a plaintiff under the Fair Labor Standards Act may recover even if the exact amount due is not capable of mathematical ascertainment.
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 was a case where the Supreme Court considered the proper determination of working time for the purposes of the Fair Labor Standards Act. The Court there said 328 U.S. at page 688, 66 S.Ct. at page 1192, 90 L.Ed. 1515: “The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of § 11(c) of the Act.” The Court further stated: “Nor is such a result to be condemned by the rule that precludes the recovery of uncertain and speculative damages. * * The uncertainty lies only in the amount of damages arising from the statutory violation by the employer. * * * It is enough under these circumstances if there is a basis for a reasonable inference as to the extent of the damages. (Citing cases.)”
The District Court emphasized that claimant had acquiesced in the wages paid to him. However, this is in no manner controlling. It is well settled that statutory wages cannot be waived by agreement. Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296; Fleming v. Warshawsky & Co., 7 Cir., 123 F.2d 622.
The District Court, time and time again, sustained objections where Packer, the expert witness, was asked as to certain computations. One instance was: “Q. Can you explain to us how a computation for overtime is made when a person is paid $1.50 per hour? Mr. Nader: I am going to object. The Court: Sustain the objection. We are not conducting a class in labor law here or in labor investigation. We are trying to determine how much money, if any, the beneficial plaintiff has coming here.”
We see no objection to the question as asked. A jury cannot keep in mind all of the figures that might enter into a determination as to whether overtime payments were due. Computations and summaries based upon evidence before the Court, in many instances, would be very helpful to a jury.
An expert may testify to computations based on facts which are in evidence as an aid to the jury’s determination. In United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 87 L.Ed. 1546, an expert accountant was permitted to testify to calculations of income and expenditures.
As examples of types of cases where expert testimony as to computations have been received are: United States v. Daisart Sportswear, 2 Cir., 169 F.2d 856, 863 (misusing priorities under § 301 of the Second War Powers Act and conspiring to violate the Emergency Price Control Act of 1942); Beaty v. United States, 4 Cir., 203 F.2d 652, 655 (income taxes owing as disclosed by testimony); Gendelman v. United States, 9 Cir., 191 F.2d 993, 996-997 (increase in net worth in an income tax fraud case). In a ease before this Court, the computations of an accountant were held admissible before a Special Master (in an action for an accounting of special assessments), First Nat. Bank and Trust Co. of Racine v. Village of Skokie, 7 Cir., 190 F.2d 791, 796.
The District Court was in error in directing judgment for the defendant. The jury should have been permitted to determine whether and to what extent claimant worked in excess of forty hours a week during the relevant periods. Then, as the Supreme Court said in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, at page 688, 66 S.Ct. 1187, at page 1193, 90 L.Ed. 1515: “It is enough under these circumstances if there is a basis for reasonable inference as to the extent of the damages.”
Reversed and remanded for a new trial.
. Fair Labor Standards Act, 29 U.S.C. §§ 201, 207, 216(c).
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer:
|
sc_issuearea
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
DENTON, DIRECTOR OF CORRECTIONS OF CALIFORNIA, et al. v. HERNANDEZ
No. 90-1846.
Argued February 24, 1992
Decided May 4, 1992
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 35.
James Ching, Supervising Deputy Attorney General of California, argued the cause for petitioners. With him on the briefs were Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Kenneth C. Young, Assistant Attorney General, and Joan W. Cavanagh, Supervising Deputy Attorney General.
Richard W. Nichols, by appointment of the Court, 502 U. S. 966, argued the cause and filed a brief for respondent.
Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Roberts filed a brief for the United States as amicus curiae urging reversal.
Elizabeth Alexander, David C. Fathi, John A Powell, Steven R. Shapiro, and Matthew Coles filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Justice O’Connor
delivered the opinion of the Court.
The federal in forma pauperis statute, codified at 28 U. S. C. § 1915, allows an indigent litigant to commence a civil or criminal action in federal court without paying the administrative costs of proceeding with the lawsuit. The statute protects against abuses of this privilege by allowing a district court to dismiss the case “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” § 1915(d). In Neitzke v. Williams, 490 U. S. 319 (1989), we considered the standard to be applied when determining whether the legal basis of an in forma pauperis complaint is frivolous under § 1915(d). The issues in this case are the appropriate inquiry for determining when an in forma pauperis litigant’s factual allegations justify a § 1915(d) dismissal for frivolousness, and the proper standard of appellate review of such a dismissal.
HH
Petitioners are 15 officials at various institutions in the California penal system. Between 1983 and 1985, respondent Mike Hernandez, a state prisoner proceeding pro se, named petitioners as defendants in five civil rights suits filed in forma pauperis. In relevant part, the complaints in these five suits allege that Hernandez was drugged and homosexually raped a total of 28 times by inmates and prison officials at different institutions. With few exceptions, the alleged perpetrators are not identified in the complaints, because Hernandez does not claim any direct recollection of the incidents. Rather, he asserts that he found needle marks on different parts of his body, and fecal and semen stains on his clothes, which led him to believe that he had been drugged and raped while he slept.
Hernandez’s allegations that he was sexually assaulted on the nights of January 13, 1984, and January 27, 1984, are supported by an affidavit signed by fellow prisoner Armando Esquer (Esquer Affidavit), which states:
“On January 13, 1984, at approximately 7:30 a.m., I was on my way to the shower, when I saw correctional officer McIntyre, the P-2 Unit Officer, unlock inmate Mike Hernandez’s cell door and subsequently saw as two black inmates stepped inside his cell. I did not see Officer McIntyre order these two black inmates out of inmate Mike Hernandez’s cell after they stepped inside, even though inmate Mike Hernandez was asleep inside. After about ten minutes, I returned from the shower, and I noticed my friend, Mike Hernandez, was being sexually assaulted by the two black inmates. Officer Mcln-tyre returned to lock inmate Mike Hernandez’s cell door after the two black inmates stepped out. I watch[ed] all this activity from the hallway and my cell door.
“On January 27th, 1984,1 was again on my way to the shower, when I noticed the same correctional officer as he unlocked inmate Mike Hernandez’s cell door, and also saw as two black inmates stepped inside inmate Mike Hernandez’s cell. Then I knew right away that both they and Officer McIntyre were up to no good. After this last incident, I became convinced that Officer McIntyre was deliberately unlocking my friend, Mike Hernandez’s cell as he [lay] asleep, so that these two black inmates could sexually assault him in his cell.” Exhibit H in No. CIV S-85-0084, Brief for Respondent 9.
Hernandez also attempted to amend one complaint to include an affidavit signed by fellow inmate Harold Pierce, alleging that on the night of July 29, 1983, he “witnessed inmate Dushane B-71187 and inmate Milliard B-30802 assault and rape inmate Mike Hernandez as he lay . . . asleep in bed 206 in the N-2 Unit Dorm.” See Exhibit G to Motion to Amend Complaint in Hernandez v. Denton, et al., No. CIV S-83-1348 (June 19, 1984), Brief for Respondent 6.
The District Court determined that the five cases were related and referred them to a Magistrate, who recommended that the complaints be dismissed as frivolous. The Magistrate reasoned that “ ‘each complaint, taken separately, is not necessarily frivolous,’ ” but that “ ‘a different picture emerges from a reading of all five complaints together.’” Id., at 11. As he explained: “ ‘[Hernandez] alleges that both guards and inmates, at different institutions, subjected him to sexual assaults. Despite the fact that different defendants are allegedly responsible for each assault, the purported modus operandi is identical in every case. Moreover, the attacks occurred only sporadically throughout a three year period. The facts thus appear to be “wholly fanciful” and justify this court’s dismissal of the actions as frivolous.’” Ibid. By order dated May 5, 1986, the District Court adopted the recommendation of the Magistrate and dismissed the complaints.
Hernandez appealed the dismissal of three of the five cases (Nos. CIV S-83-0645, CIV S-83-1348, CIV S-85-0084; see n. 1, supra). Reviewing the dismissal de novo, the Court of Appeals for the Ninth Circuit reversed and remanded. Hernandez v. Denton, 861 F. 2d 1421 (1988). In relevant part, Judge Schroeder’s lead opinion concluded that a district court could dismiss a complaint as factually frivolous only if the allegations conflicted with judicially noticeable facts, that is, facts “‘capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’” Id., at 1426 (quoting Fed. Rule Evid. 201). In this case, Judge Schroeder wrote, the court could not dismiss Hernandez’s claims as frivolous because it was impossible to take judicial notice that none of the alleged rapes occurred. 861 F. 2d, at 1426. Judge Wallace concurred on the ground that Circuit precedent required that Hernandez be given notice that his claims were to be dismissed as frivolous and a chance to amend his complaints to remedy the deficiencies. Id., at 1427. Judge Aldisert dissented. He was of the opinion that the allegations were “the hallucinations of a troubled man,” id., at 1440, and that no further amendment could save the complaint, id., at 1439-1440.
We granted petitioners’ first petition for a writ of certiorari, 493 U. S. 801 (1989), vacated the judgment, and remanded the case to the Court of Appeals for consideration of our intervening decision in Neitzke v. Williams, 490 U. S. 319 (1989). On remand, the Court of Appeals reaffirmed its earlier decision. 929 F. 2d 1374 (1991). Judge Schroeder modified her original opinion to state that judicial notice was just “one useful standard” for determining factual frivolousness under § 1916(d), but adhered to her position that the case could not be dismissed because no judicially noticeable fact could contradict Hernandez’s claims of rape. Id., at 1376. Judge Wallace and Judge Aldisert repeated their earlier views.
We granted the second petition for a writ of certiorari to consider when an informa pauperis claim may be dismissed as factually frivolous under § 1915(d). 502 U. S. 937 (1991). We hold that the Court of Appeals incorrectly limited the power granted the courts to dismiss a frivolous case under § 1915(d), and therefore vacate and remand the case for application of the proper standard.
II
In enacting the federal in forma pauperis statute, Congress “intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, in any court of the United States, solely because ... poverty makes it impossible ... to pay or secure the costs” of litigation. Adkins v. E. I. DuPont de Nemours & Co., 335 U. S. 331, 342 (1948) (internal quotation marks omitted). At the same time that it sought to lower judicial access barriers to the indigent, however, Congress recognized 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.” Neitzke, supra, at 324. In response to this concern, Congress included subsection (d) as part of the statute, which allows the courts to dismiss an in forma pauperis complaint “if satisfied that the action is frivolous or malicious.”
Neitzke v. Williams, supra, provided us with our first occasion to construe the meaning of “frivolous” under § 1915(d). In that case, we held that “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.” Id., at 325. In Neitzke, we were concerned with the proper standard for determining frivolousness of legal conclusions, and we determined that a complaint filed informa pauperis which fails to state a claim under Federal Rule of Civil Procedure 12(b)(6) may nonetheless have “an arguable basis in law” precluding dismissal under § 1916(d). 490 U. S., at 328-329. In so holding, we observed that the informa pauperis statute, unlike Rule 12(b)(6), “accords judges not only the authority to dismiss a claim based on an indisputably merit-less 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.” Id., at 327. “Examples of the latter class,” we said, “are claims describing fantastic or delusional scenarios, claims with which federal district judges are all too familiar.” Id., at 328.
Petitioners contend that the decision below is inconsistent with the “unusual” dismissal power we recognized in Neitzke, and we agree. Contrary to the Ninth Circuit’s assumption, our statement in Neitzke that § 1915(d) gives courts the authority to “pierce the veil of the complaint’s factual allegations” means that a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff’s allegations. We therefore reject the notion that a court must accept as “having an arguable basis in fact,” id., at 325, all allegations that cannot be rebutted by judicially noticeable facts. At the same time, in order to respect the congressional goal of “assuring] equality of consideration for all litigants,” Coppedge v. United States, 369 U. S. 438, 447 (1962), this initial assessment of the informa pauperis plaintiff’s factual allegations must be weighted in favor of the plaintiff. In other words, the § 1915(d) frivolousness determination, frequently made sua sponte before the defendant has even been asked to file an answer, cannot serve as a factfinding process for the resolution of disputed facts.
As we stated in Neitzke, a court may dismiss a claim as factually frivolous only if the facts alleged are “clearly baseless,” 490 U. S., at 327, a category encompassing allegations that are “fanciful,” id., at 325, “fantastic,” id., at 328, and “delusional,” ibid. As those words suggest, a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them. An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff’s allegations unlikely. Some improbable allegations might properly be disposed of on summary judgment, but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be “strange, but true; for truth is always strange, Stranger than fiction.” Lord Byron, Don Juan, canto XIV, stanza 101 (T. Steffan, E. Steffan, & W. Pratt eds. 1977).
Although Hernandez urges that we define the “clearly baseless” guidepost with more precision, we are confident that the district courts, who are “all too familiar” with factually frivolous claims, Neitzke, supra, at 328, are in the best position to determine which cases fall into this category. Indeed, the statute’s instruction that an action may be dismissed if the court is “satisfied” that it is frivolous indicates that frivolousness is a decision entrusted to the discretion of the court entertaining the in forma pauperis petition. We therefore decline the invitation to reduce the “clearly baseless” inquiry to a monolithic standard.
Because the frivolousness determination is a discretionary one, we further hold that a § 1915(d) dismissal is properly reviewed for an abuse of that discretion, and that it was error for the Court of Appeals to review the dismissal of Hernandez’s claims de novo. Cf. Boag v. MacDougall, 454 U. S. 364, 365, n. (1982) (per curiam) (reversing dismissal of an informa pauperis petition when dismissal was based on an erroneous legal conclusion and not exercise of the “broad discretion” granted by § 1915(d)); Coppedge, supra, at 446 (district court’s certification that in forma pauperis appellant is taking appeal in good faith, as required by § 1915(a), is “entitled to weight”). In reviewing a § 1915(d) dismissal for abuse of discretion, it would be appropriate for the Court of Appeals to consider, among other things, whether the plaintiff was proceeding pro se, see Haines v. Kerner, 404 U. S. 519, 520-521 (1972); whether the court inappropriately resolved genuine issues of disputed fact, see supra, at 32-33; whether the court applied erroneous legal conclusions, see Boag, 454 U. S., at 365, n.; whether the court has provided a statement explaining the dismissal that facilitates “intelligent appellate review,” ibid.; and whether the dismissal was with or without prejudice.
With respect to this last factor: Because a § 1915(d) dismissal is not a dismissal on the merits, but rather an exercise of the court’s discretion under the informa pauperis statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations. It could, however, have a res judicata effect on frivolousness determinations for future in forma pauperis petitions. See, e. g., Bryant v. Civiletti, 214 U. S. App. D. C. 109, 110-111, 663 F. 2d 286, 287-288, n. 1 (1981) (§ 1915(d) dismissal for frivolousness is res judicata); Warren v. McCall, 709 F. 2d 1183, 1186, and n. 7 (CA7 1983) (same); cf. Rogers v. Bruntrager, 841 F. 2d 853, 855 (CA8 1988) (noting that application of res judicata principles after § 1915(d) dismissal can be “somewhat problematical”). Therefore, if it appears that frivolous factual allegations could be remedied through more specific pleading, a court of appeals reviewing a § 1915(d) disposition should consider whether the district court abused its discretion by dismissing the complaint with prejudice or without leave to amend. Because it is not properly before us, we express no opinion on the Ninth Circuit rule, applied below, that a pro se litigant bringing suit informa pauperis is entitled to notice and an opportunity to amend the complaint to overcome any deficiency unless it is clear that no amendment can cure the defect. E. g., Potter v. McCall, 433 F. 2d 1087, 1088 (1970); Noll v. Carlson, 809 F. 2d 1446 (1987).
Accordingly, we vacate the judgment below and remand the case for proceedings consistent, with this opinion.
It is so ordered.
See Amended Complaint in Hernandez v. Ylst, et al., No. CIV S-83-0645 (Feb. 9, 1984) (alleging rape by unidentified correctional officers at California State Prison at Folsom on the night of July 29, 1982), Brief for Respondent 2-4; Motion to Amend Complaint in Hernandez v. Denton, et al., No. CIV S-83-1348 (June 19,1984) (alleging rape by one or more prisoners at California Medical Facility at Vacaville on the night of July 29, 1983, and one additional episode in December 1983), Brief for Respondent 5; Complaint in Hernandez v. Ylst, et al., No. CIV S-84-1074 (Aug. 20, 1984) (alleging six additional druggings and rapes occurring between August 12 and November 4, 1983), Brief for Respondent 6; Complaint in Hernandez v. Ylst, et al., No. CIV S-84-1198 (Sept. 17, 1984) (alleging three additional incidents occurring between November 26 and December 12, 1983), Brief for Respondent 6-7; Complaint in Hernandez v. Ylst, et al., No. CIV S-85-0084 (Jan. 21,1985) (alleging 16 additional incidents occurring between January 13 and December 10, 1984), Brief for Respondent 7.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_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
William T. MILLER, Appellant, v. J. T. WILLINGHAM, Warden, Appellee.
No. 10009.
United States Court of Appeals Tenth Circuit.
Sept. 23, 1968.
Jon L. Lawritson, Denver, Colo., for appellant.
Kenneth F. Crockett, Asst. U. S. Atty., Topeka, Kan. (Benjamin E. Franklin, U. S. Atty., Topeka, Kan., on the brief), for appellee.
Before LEWIS, SETH and HICKEY, Circuit Judges.
HICKEY, Circuit Judge.
This is an appeal from denial of a writ of habeas corpus by the United States District Court for the District of Kansas. The appellant, William T. Miller, is presently serving a five year sentence in the United States Penitentiary at Leavenworth, Kansas, for a Dyer Act violation, 18 U.S.C. § 2312. Miller plead guilty to the Dyer Act violation February, 1964, in the United States District Court for the Eastern District of Texas. When Miller entered his plea he was serving a sentence imposed by a Texas state court.
Three questions are presented by this appeal. First, is a writ of habeas corpus procedurally proper in this case; second, in the absence of explicit sentencing instructions was Miller’s sentence to run concurrently or consecutively with a Texas state sentence he was serving when he plead guilty to the Dyer Act violation; third, is Miller entitled to have the writ issue ?
In February, 1964, while serving a sentence in custody of the Director of the Texas Department of Corrections, Miller plead guilty to a Dyer Act violation. He was sentenced to a five year term without any comment by the sentencing judge concerning the concurrent or consecutive nature of the sentence vis-a-vis the uncompleted Texas sentence. After Miller was released by the Texas Department of Corrections, he was transferred to Leavenworth, Kansas, to serve the federal sentence.
Miller filed a writ of habeas corpus in the district court below contending that because the sentence of the United States District Court for the District of Texas did not provide that the federal sentence was to run consecutively with the Texas state sentence, the federal and state sentences must be construed to run concurrently. If the two sentences are concurrent, then Miller’s federal sentence is complete because the time he has been in Leavenworth, plus the time in state custody after he received the federal sentence, less applicable credits, exceeds his five year federal sentence.
Miller further contends that the terms of his sentence are ambiguous because the judgment and commitment form filed by the district court was wrongfully altered in longhand by an unknown person after it was signed by the trial judge.
Lastly, Miller contends that the trial court failed to allow credit for pre-sen-tencing custody time.
A writ of habeas corpus is a procedurally proper remedy in the instant case.
“A prisoner in a federal penitentiary may be heard to contend in a proceeding in habeas corpus that he has fully served the sentence or sentences imposed upon him and therefore should be discharged from further confinement. Title 28, section 2255, United States Code, does not impinge upon the right to urge such a contention in habeas corpus. Brown v. Hunter, 10 Cir., 187 F.2d 543; Mills v. Hunter, 10 Cir., 204 F.2d 468.” Darnell v. Looney, 239 F.2d 174 (10th Cir. 1956). Carpenter v. Crouse, 358 F.2d 701 (10th Cir. 1966) (dictum); Holloway v. Looney, 207 F.2d 433 (10th Cir. 1953) (dictum).
We therefore proceed to review the trial court’s determination of the merits of the application.
Although viable, the case law rule that ambiguous sentences are concurrent, is of very limited application. This is because 18 U.S.C. § 3568 is almost always controlling where the issue of concurrent versus consecutive sentences is raised. E. g., Powers v. Taylor, 327 F.2d 498 (10th Cir. 1964); Taylor v. Baker, 284 F.2d 43 (10th Cir. 1960); Hayward v. Looney, 246 F.2d 56 (10th Cir. 1957). This determination is, of course, predicated on the conclusion that Miller’s sentence by the district court was not ambiguous; we so hold. Although an explicit statement by the sentencing court regarding the relationship between the federal and state sentence may have been desirable, it certainly is not mandatory. The federal district court was under no compulsion to recognize the existence of the uncompleted sentence of another jurisdiction. Harris v. United States, 356 F.2d 945 (10th Cir. 1966); Hayward v. Looney, 246 F.2d 56 (10th Cir. 1957). That court was, however,r under compulsion to be cognizant of and give effect to all applicable United States Statutes. Hall v. St. Helena Parish School Bd., 268 F.Supp. 923 (E.D.La. 1967). In the absence of evidence to the contrary, we conclude that Miller was sentenced by the district court in full compliance with 18 U.S.C. § 3568. The absence of any reference to the concurrent or consecutive nature of the federal sentence vis-a-vis the Texas sentence did not create an ambiguity.
Miller’s argument regarding alteration of the judgment and commitment form is without merit. The inscriptions on this form are obviously of an administrative nature, and necessary to the maintenance of a record for sentence computation. The sentencing judge could not determine with certitude when the federal sentence would begin because he did not know when Texas would relinquish custody. There is an obvious necessity for an administrative notation concerning commencement of Miller’s federal internment. The fact that this notation was made on a copy of the judgment and commitment form does not render the original sentence ambiguous.
The allegation regarding pre-sentencing custody time is also without merit. The sentence begins to run in conformance with the language of 18 U.S.C. § 3568 and that language does not include time in custody, of the United States Marshal, awaiting return to the State of Texas.
Miller is not entitled to the relief he seeks because the sentence of the District Court for the Eastern District of Texas is not ambiguous. Therefore the case is controlled by previous Tenth Circuit decisions. E. g., Williams v. Taylor, 327 F.2d 322 (10th Cir. 1964); Taylor v. Baker, 284 F.2d 43 (10th Cir. 1960). Accord, Larios v. Madigan, 299 F.2d 98 (9th Cir. 1962); United States v. J. C. Martin Lumber Co., 246 F.2d 58 (5th Cir. 1957).
Affirmed.
. Downey v. United States, 07 App.D.C. 192, 91 F.2d 223 (1937), is one of the few cases whore tiie rule was actually applied. That opinion limited application of the rule to circumstances where the sentence was ambigious and not subject to correction.
. 18 U.S.C. § 3508 provides: “The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of bis sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term ‘offense’ moans any criminal offense, otlier than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress.
“If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.
“No sentence shall prescribe any other method of computing the term.”
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_r_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.
Joseph S. GULLO and Vivian B. Gullo, Appellants, v. VETERANS COOPERATIVE HOUSING ASSOCIATION et al., Appellees.
No. 14925.
United States Court of Appeals District of Columbia Circuit.
Argued May 15, 1959.
Decided May 28, 1959.
Mr. Joseph S. Gullo, Arlington, Va., for appellants.
Mr. Paul Daniel, Washington, D. C., with whom Mr. Carlyle C. Ring, Jr., Washington, D. C., was on the brief, for appellee Veterans Cooperative Housing Ass’n. Mr. James R. Worsley, Jr., Washington, D. C., also entered an appearance for appellee Veterans Cooperative Housing Ass’n.
Mr. Hubert B. Pair, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. Chester H. Gray, Corp. Counsel, and Milton D. Korman, Principal Asst. Corp. Counsel, were on the brief, for appellee District of Columbia.
Before Wilbur K. Miller, Bazelon and BASTIAN, Circuit Judges.
PER CURIAM.
This case was dismissed by the District Court apparently on the ground of res judicata, the court taking judicial notice of the previous case between the parties, the details of which are spelled out in Gullo v. Veterans Cooperative Housing Association, 1957, 101 U.S.App. D.C. 167, 247 F.2d 573.
In all its essential particulars, the present action is the same as that of the previous case, and the District Court correctly applied the doctrine of res judi-cata.
While the defense of laches was interposed, it is not necessary that we pass on that issue.
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_appel1_1_3
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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.
Thomas CLYCE, Barbara A. Clyce, Alabama Federal Savings & Loan Association, and First Alabama Bank of Birmingham, Plaintiffs-Appellees. v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Defendant-Appellant.
No. 87-7561.
United States Court of Appeals, Eleventh Circuit.
Aug. 4, 1987.
Thomas A. Woodall, Rives & Peterson, Birmingham, Ala., for defendant-appellant.
Donald H. Brockway, Jr., Corretti & Newsom, Birmingham, Ala., for plaintiffs-appellees.
Before KRAYITCH and CLARK, Circuit Judges, and NICHOLS , Senior Circuit Judge.
Honorable Philip Nichols, Jr., Senior U.S. Cir-. cuit Judge for the Federal Circuit, sitting by designation.
NICHOLS, Senior Circuit Judge:
St. Paul Fire & Marine Insurance Company (St. Paul) appeals the decisions of the district court denying St. Paul’s motion for directed verdict and granting the Clyces’ motion for a new trial solely on the issue of damages. Civil Action No. 86-G-0530-S (N.D.Ala.). We affirm the decision of the trial judge denying St. Paul’s motion for directed verdict and the jury instructions given on the interpretation of the insurance policy. We reverse the trial judge’s decision granting the Clyces a new trial on the issue of damages.
Background
Appellees in this suit, Thomas and Barbara Clyce, took out an insurance policy with St. Paul, No. 9BB300276, known as an all-in-1 policy. An all-in-1 policy comprehensively covered the Clyces for damage sustained to their real and personal property as listed in the insurance agreement. The policy specifically stated that the Clyces’ home in Birmingham, Alabama was covered for damage sustained except as noted in item 6 on page 2 of the policy, which provides:
We won’t cover any loss that’s caused or made worse by any of the following: Earthquake. Landslide, mud flow or other earth movement. Flood, surface water or spray, even if driven by wind. Underground water exerting pressure on, seeping or flowing through a sidewalk, driveway, foundation, basement, wall, floor, door, window or other opening.
Later in the policy, in defining instances where coverage was appropriate, the policy states: “We cover damage caused by dampness or extreme temperatures only if it’s a direct result of rain, snow, sleet, ice or hail.” At the time of the damage to the Clyces’ property, the all-in-1 policy was in effect.
The Clyce property sits below street level and is surrounded by two retaining walls. One, a long retaining wall, stands in front of the Clyce property between the Clyce home and the street. The second, a smaller wall, adjoins the house. The property, in general, slopes downward from the street. On or about the 4th of January 1984, the long retaining wall in front of the Clyce home collapsed. At that time, Clyce also noticed bows and cracks in the smaller wall and cracks in the front foundation wall of his basement.
After the collapse, Clyce approached St. Paul to file a claim for costs to repair the collapsed wall and damage to the smaller wall and basement. On February 13, 1984, Clyce sent a letter to St. Paul stating that freezing temperatures and the formation of ice, in his opinion, caused the wall collapse and other problems. St. Paul, relying on the opinion of a civil engineer it had retained to analyze the Clyce claims, denied coverage for the damage. The report of the civil engineer stated that “earth pressure, though, from the weight of the soil, would have created pressures that could not be withstood by an eight inch unrein-forced concrete block retaining wall.” The claims adjustor for St. Paul relied on the above-quoted language on “earth movement” to deny the Clyces’ claims. After denial, the Clyces sued over the proper amount of money recoverable for the collapse and the extent of coverage the policy afforded them.
The case resulted in two trials. At the first trial, the jury held St. Paul responsible for the costs to repair the collapsed walls and, following instructions from the trial judge, found that St. Paul improperly denied coverage based on its “earth movement” exclusion clause. The judge had instructed the jury:
The insurance policy does not exclude from coverage damage caused or made worse by earth pressure. That is not an exclusion in this policy. That language does not appear. There is language, and you can read it — I think it’s on page 6. It’s an exclusion provision which says that the policy doesn’t cover damage resulting — I’m not quoting now, but I’m just paraphrasing — does not cover damage from — and now I do quote, “earthquake, landslide, mud flow or other earth movement.”
The language of insurance policies, especially a plain language policy, which this is, such language is interpreted according to the ordinary, every day usage of the words, not as specialized engineering or scientific interpretation or definition. And the every day use of pressure does not mean movement. So, earth pressure is not earth movement, and earth pressure is not an exclusion under this policy.
After the presentation of the Clyces’ case, St. Paul moved for a directed verdict which the trial judge denied. On April 29, 1987, after a two-day trial, the Clerk of the Court entered the jury’s verdict in the record. The jury found in favor of the Clyces and assessed a damage award of $9,500 against St. Paul. On May 29, 1987, the Clyces filed a motion for a new trial on the issue of damages, asserting that the jury’s award was contrary to law and unsupported by the evidence presented. The court granted the Clyces’ motion on June 2, 1987. At the second trial on damages, utilizing some of the expert testimony on costs to repair from the first trial, the jury awarded the Clyces $25,092.25. St. Paul timely filed an appeal to this court contesting the propriety of the denial of its directed verdict motion at the first trial and the grant of Clyces’ motion for a new trial on the issue of damages.
Discussion
The case before us is a diversity action predicated on contract law claims. Alabama law therefore controls the disposition of substantive issues and this court’s jurisdiction is premised on 28 U.S.C. § 1291.
A. In assessing the propriety of the denial or grant of a motion for directed verdict, this court reviews the trial court’s decision under an abuse of discretion standard. Bunch v. Walter, 673 F.2d 127, 130 n. 4 (5th Cir.1982); Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). The trial court must determine
whether there is sufficient evidence to submit a case to the jury in the face of a directed verdict motion if, after viewing all the evidence in the light most favorable to the nonmoving party, the facts and inferences point so strongly in favor of one party that reasonable persons could not decide against the movant.
Cook v. Branick Mfg., Inc., 736 F.2d 1442, 1445 (11th Cir.1984).
The record in this case is clear. The trial court assessed the evidence at hand in the light most favorable to the nonmoving party, the Clyces, and decided that sufficient evidence existed to send the case to the jury. We hold that the trial judge did not abuse his discretion in so finding.
The record is replete with contradictions between the experts, with differences in testimony as to the value of the Clyces’ property. In the face of such divergence, this court would be hard pressed to find an abuse of discretion. Therefore, we affirm the trial court’s denial of St. Paul’s motion for directed verdict.
B. St. Paul also challenges the jury instructions given by the trial judge at the first trial referencing the “earth movement” provision of the Clyces’ insurance policy. The interpretation of a contract, which an insurance policy undoubtedly is, is a question of law within the scope of the trial court’s determination. Gibbs v. Air Canada, 810 F.2d 1529, 1532 (11th Cir.1987); Brewer v. Muscle Shoals Bd. of Education, 790 F.2d 1515, 1519 (11th Cir.1986); see also Ford v. Scott, 462 So.2d 362, 365 (Ala.1985); Johnson-Rast & Hays, Inc. v. Cole, 310 So.2d 885, 889 (Ala.1975). As the trial court reasoned, provisions in insurance policies are construed against the drafter of the policy when ambiguities exist. Aschenbrenner v. U.S. Fidelity & Guaranty Co., 292 U.S. 80, 84-85, 54 S.Ct. 590, 594, 78 L.Ed. 1137, 1143 (1934). See also Zelinsky v. Associated Aviation Underwriters, 478 F.2d 832 (7th Cir.1973). In so construing the policy, the trial court examined the policy itself, reviewed the testimony of the experts, and determined that with a common sense definition of the terms, “earth movement” and “earth pressures” differed so that “earth pressures” would be covered under the all-in-1 policy.
The trial court is afforded a wide latitude in interpreting evidence before it, drawing legal conclusions, and instructing the jury accordingly. Salem v. U.S. Lines Co., 370 U.S. 81, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313, 317 (1962); Vallot v. Central Gulf Lines, Inc., 641 F.2d 347, 350 (5th Cir.1981). In this instance, given its interpretation of the evidence presented, the trial court did not err in instructing the jury as it did, that “earth movement” and “earth pressures” were significantly different for purposes of coverage. The earth behind the retaining wall could have been found to have dislodged the wall by expanding slightly in cold, freezing weather, but it remained in place after the wall fell and did not follow it in any avalanche, landslide, or mud flow. The trial judge’s construction of the policy not only was not outlandish, nor extreme, but agrees with our notion of what the authors of the language intended. As such, we find that the trial court committed no error in instructing the jury as it did. We affirm.
C. Lastly, St. Paul challenges the court’s decision to grant a new trial on the issue of damages. This court reviews the grant or denial of such motions under an abuse of discretion standard. Fondren v. Allstate Insurance Co., 790 F.2d 1533, 1534 (11th Cir.1986); Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.1984). In some instances, this court’s review must be especially stringent so as to protect the litigant’s rights to a jury trial. Id. at 1556. See also Williams v. City of Valdosta, 689 F.2d 964, 974 (11th Cir.1982) (advocating rarely disturbing a jury verdict especially in cases where “the trial involves simple issues [and] highly disputed facts” with an “absence of ‘pernicious occurrences’ ”).
After thorough consideration of the trial judge’s actions in light of this court’s responsibility to protect a litigant’s rights to a jury trial, we hold that it was improper for the trial court to grant the new trial on the issue of damages. The testimony adduced at the first trial indicated that evidence did exist supporting the jury award granted — i.e., $9,500 — and that award should not have been disturbed. The evidence of Mr. Fillipelli, the insurance adjustor, of the civil engineer, and the contractors presented by the Clyces, set up a broad range of possible recovery from which the jury could pick and choose. The evidence suggested possible recovery from a little over $1,000 to as much as over $20,000. As such, the trial court inappropriately and improvidently granted the new trial motion in light of existing evidence. Substantiality of evidence need not necessarily be measured by a nose count of contending experts.
This circuit holds that “certain circumstances [require] a trial court [to] grant even greater deference to a jury verdict.” Fondren, 790 F.2d at 1534 n. 3, greater, that is, than the substantial evidence rule would require in a nonjury case. This rule is applicable in the instant case. We therefore reverse and remand the trial court’s decision to grant a new trial on the issue of damages. The trial court is instructed to reinstate the original jury verdict for the Clyces in the amount of $9,500 with appropriate pre-judgment interest.
AFFIRMED in part, REVERSED in part, and REMANDED.
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_respond2_8_3
|
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.
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 "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
AMERICAN DREDGING COMPANY, Appellant v. LOCAL 25, MARINE DIVISION, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO and Stephen J. Leslie, Joseph F. Erhmann, William F. Zenga and Vincent Motzel, Individually and as Trustees.
No. 14710.
United States Court of Appeals Third Circuit.
Argued Feb. 20, 1964.
Decided Oct. 30, 1964.
Rehearing Denied Dec. 14, 1964.
Hastie, Circuit Judge, dissented.
Harvey B. Levin, Lazarus & Levin, Philadelphia, Pa. (Krusen Evans & Byrne, Philadelphia, Pa., on the brief), for appellant.
Marshall J. Seidman, Weiner, Baseh, Lehrer & Cheskin, Philadelphia, Pa., for appellee.
Before KALODNER and HASTIE, Circuit Judges and KIRKPATRICK, District Judge.
KALODNER, Circuit Judge.
The District Court here denied the plaintiff’s motion to remand to the state court from which it had been removed, a suit, based solely on a state-created right, to enjoin the defendant union’s violation, in the course of a labor dispute, of the “no-strike” provision of its collective bargaining agreement, and subsequently denied the plaintiff’s motion for injunctive relief. It premised its denial of remand on the ground that it had original jurisdiction under § 301(a) of the Labor Management Relations Act,, of a suit for violation of a labor contract, and § 1441 of the Removal Statute permits the removal to a federal district court of a civil action of which it has original jurisdiction under a law of the United States. It based its denial of plaintiff’s motion for an injunction on the ground that it was “without power to grant injunctive relief because of § 4 of Norris-LaGuardia [Norris LaGuardia Act], since this is a 'case involving or growing out of a labor dispute,’ within the meaning of the Act. Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 182 S. Ct. 1328, 8 L.Ed.2d 440 (1962).”
The sum of the District Court’s view is that the Norris-LaGuardia limitations on jurisdiction of federal district courts, which the Supreme Court held in Sinclair extends to § 301 in cases growing out of labor disputes, do not divest these courts of subject matter jurisdiction of such cases, viz., the capacity to take cognizance of, or to entertain, but merely strip them of power to grant injunctive relief.
The view stated disregards the critical fact that in Sinclair, the Supreme Court, in holding that the jurisdiction conferred by § 301 was subject to the jurisdictional limitations enacted by the earlier NorrisLaGuardia Act, expressly ruled at page 215, 82 S.Ct. at page 1339:
“The District Court was correct in dismissing Count 3 of petitioner’s complaint for lack of jurisdiction under the Norris-LaGuardia Act.” (emphasis supplied)
We can only construe the phrase “lack of jurisdiction” as embracing within its ambit subject matter jurisdiction and accordingly hold that the District Court erred in failing to grant the motion to remand in the instant case on its reasoning that it had subject matter jurisdiction under § 301 within the “original jurisdiction” provisions of § 1441. It merits observation that the background factual situation which constituted the basis of the injunctive action in Sinclair was on all fours with that existing here, as appears in Note 9.
It may be pointed out anent the holding in Sinclair, that the Supreme Court, some 36 years earlier, in General Investment Company v. New York Central Railroad Company, 271 U.S. 228, p. 230, 46 S.Ct. 496, p. 497, 70 L.Ed. 920 (1926) succinctly defined jurisdiction as follows:
“By jurisdiction we mean power to entertain the suit, consider the merits and render a binding decision thereon * * *.” (emphasis supplied)
It is fair to assume that Congress in its use of the word “jurisdiction” in the Norris-LaGuardia Act in 1932 was aware of the Supreme Court’s definition of “jurisdiction” six years earlier, in the foregoing case.
The Norris-LaGuardia Act in its title declared that it was:
“AN ACT
“To amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity, and for other purposes.”
In Section 2 — “Declaration of the public policy of the United States” — it was stated in relevant part:
“In the interpretation of this Act and in determining the jurisdiction and authority of the courts of the United States, as such jurisdiction and authority are herein defined and limited, the public policy of the United States is hereby declared as follows:
“ * * * therefore, the following definitions of, and limitations upon, the jurisdiction and authority of the courts of the United States are hereby enacted.” (emphasis supplied).
In State of Minnesota v. Northern Securities Company, 194 U.S. 48, 24 S.Ct. 598, 48 L.Ed. 870 (1904) the Supreme Court made it clear that the term jurisdiction as used in the Removal Statute means the power to take cognizance of the case upon removal from a state court and to decide it upon its merits. There, an action was brought by the State of Minnesota against the defendants, to annul an agreement and suppress a combination alleged to exist between the defendant corporations, upon the grounds that the agreement and combination were in violation of the laws of Minnesota, and of the anti-trust laws of the United States. The action was removed from the state court to the circuit court of Minnesota on the ground that it was “one arising under the Constitution and laws of the United States,” and was subsequently dismissed by the circuit court on its merits.
The Supreme Court sua sponte raised the question as to whether the case was removable although all the parties to the action “deemed the case a removable one.”
In so doing it stated at page 63, 24 S.Ct. at page 601:
“If the record does not affirmatively show jurisdiction in the circuit court, we must, upon our own motion, so declare, and make such order as will prevent that court from exercising an authority not conferred upon it by statute. * * *
“We proceed, therefore, to inquire whether the circuit court could take cognizance of this case upon removal from the state court, and make a final decree upon the merits.” (emphasis supplied)
After noting that it was the “general policy of these acts [removal statutes], manifest upon their face, and often recognized by this court, to contract the jurisdiction of the circuit [district] courts of the United States”, it was said at pages 64-65, 24 S.Ct. at page 602:
“These cases establish, beyond further question in this court, the rule that, under existing statutes regulating the jurisdiction of the courts of the United States, a case cannot be removed from a state court as one arising under the Constitution or laws of the United States, unless the plaintiff’s complaint, bill, or declaration shows it to be a case of that character. ‘If it does not appear at the outset,’ this court has quite recently said, ‘that the suit is one of which the circuit court at the time its jurisdiction is invoked could properly take cognizance, the suit must be dismissed.’ Third Street & Suburban R. Co. v. Lewis, 173 U.S. 457, 460, 43 L.ed. 766, 767, 19 Sup.Ct. Rep. 451.” (emphasis supplied)
It_is of compelling significanee-here that in Northern Securities, the Supreme Court reversed the denial of remand below on the ground that the removed action did not “really and substantially involve a dispute or controversy within the jurisdiction of the circuit court for the purposes of a final decree * * * ” and, “That being the case, the circuit court, following the mandate of the statute [predecessor of the present § 1447 (c)], should not have proceeded therein, but should have remanded the cause to the state court.” (emphasis supplied)
In the instant case the complaint alleged that the union had violated the “no-strike” clause of its collective bargaining agreement in the course of a labor dispute, and thus it appeared “at the outset” that the District Court could not, under Sinclair, “properly take cognizance of this case upon removal from the state court, and make a final decree upon the merits.”
It cannot be gainsaid that had the plaintiff initially brought suit in the District Court under § 301, alleging in its complaint a cause of action for breach of its collective bargaining agreement, in the course of a labor dispute, and praying for injunctive relief, that the action would have been dismissed for lack of jurisdiction under Sinclair.
To say then that a District Court has subject matter jurisdiction of a cause of action, so as to authorize it to take cognizance of it under the provisions of the Removal Statute, when it does not in the first place have jurisdiction to entertain and decide it upon its merits, is to give sanction to an exercise in futility.
Or putting it another way, for a court to say that it has subject matter jurisdiction enabling it to take cognizance of a case, and then to rule that although the case has merit, it is without judicial power, viz., jurisdiction, to grant a final decree on the merits, is to pursue, what Mr. Justice Frankfurter once character-’ ized, in another context, “a fox-hunting theory of justice that ought to make Bentham’s skeleton rattle,” and to do violence to the holding in General Investment Company v. New York Central Railroad Company, supra, that “By jurisdiction we mean power to entertain the suit, consider the merits and render a binding decision thereon.”
It has been settled for almost a century that federal statutes should be construed and applied so as to avoid “injustice” or “absurd consequences.”
In United States v. Kirby, 7 Wall. 482, pp. 486, 487, 74 U.S. 482, pp. 486, 487, 19 L.Ed. 278 (1869) it was said:
“The authority by which judicial officers take cognizance of and decide causes * * * the power to hear and determine a cause. * * * ”
“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. * * * The reason of the law, in such eases, should prevail over its letter.”
In United States v. Katz, 271 U.S. 354, p. 357, 46 S.Ct. 513, p. 514, 70 L.Ed. 986 (1926) in which Kirby was cited with approval, it was said:
“All laws are to be given a sensible construction; and a literal application of a statute, which would lead to absurd consequences, should be avoided whenever a reasonable application can be given to it, consistent with the legislative purpose. * * * In ascertaining that purpose, we may examine the title of the act (citing eases) * * * and the legislative scheme or plan by which the general purpose of the act is to be carried out. (citing cases).”
Here the denial of remand not only led to the “absurd consequence” of leaving the District Court with a case on its judicial hands without judicial power to “make a final decree on its merits”, but also to these serious consequences:
It rendered an “injustice” to the plaintiff in that it deprived it of the benefit of the temporary injunctive relief granted by the state court under state law, prior to the case’s removal, and foreclosed it from the available remedy of a permanent injunction; it ousted the state court of its jurisdiction to apply state law in a field not pre-empted by Congress, in contravention of the historic comity doctrine which proscribes avoidable direct conflicts between federal and state courts; and it thwarted the Congressional policy intended to have § 301(a) “supplement” and “not to displace” or “to encroach upon the existing jurisdiction of the state courts” in suits for violation of collective bargaining contracts in industries affecting interstate commerce. Charles Dowd Box Co., Inc. v. Courtney, 368 U.S 502, 509, 511, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962).
“Tie common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian Law which enacted, ‘That whoever drew blood in the streets should be punished with the utmost severity,’ did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling cited by Plowden, that the Statute of 1 Edward II., which enacts that a prisoner who breaks prison shall be guilty of a felony, does not extend to a prisoner wlio breaks out when the prison is on fire— ‘for he is not to be hanged because lie would not stay to be burnt.’ And we think that a like common sense will sanction the ruling we make, that the Act of Congress which punishes the obstruction or retarding of the passage of the mail, or its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder.”
Elaboration of these serious consequences must yield the right of way to the resolution of this transcending question:
Assuming, arguendo, that the NorrisLaGuardia Act did not deprive the District Court of § 301(a) subject matter jurisdiction, was the action here “founded on a claim or right arising under the Constitution, treaties or laws of the United States”, so as to make it removable, “without regard to the citizenship or residence of the parties”, within the meaning of § 1441(b) of the Removal Statute?
If the answer to that question is that the removed state action was not “founded on a claim or right arising under” § 301(a), it will require the reversal of the denial of remand, independent of the resolution of all the other questions presented by this appeal.
In 1821 the Supreme Court was first called upon to decide when a case “arises under a law of the United States” in the landmark case of Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257.
Speaking for the Court, Mr. Chief Justice Marshall there said (p. 379):
“A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either.” (emphasis supplied) \
It is of compelling significance here that in so holding the Supreme Court rejected the contention that a case arises under the Constitution or a law of the United States merely because it is founded on a right conferred by the Constitution or a federal law.
1 In doing so the Chief Justice said (p. 379):
“If it [the intention of the contention] be to maintain that a case arising under the constitution, or a law, must be one in which a party comes into court to demand something conferred on him by the constitution or h law, we think the construction too narrow.” (emphasis supplied)
In amplification of the rule stated, Mr. Chief Justice Marshall, speaking for the Court, in Osborn v. Bank of United States, 9 Wheat. 738, 822, 6 L.Ed. 204 (1824), declared that a case arises under the constitution or laws of the United States when “the title or right set up by the party may be defeated by one construction of the constitution of law of the United States and [o?-] sustained by the opposite construction.” (emphasis supplied)
More than a half century later, the Supreme Court, in Little York Gold-Washing and Water Company, Limited v. Keyes, 96 U.S. 199, 24 L.Ed. 656 (1878), applied the principles declared in Cohens and Osborn, in construing a provision in the Eemoval Act of 1875, for removal of suits “arising under the Constitution or laws of the United States.”
It there held (pp. 203-204):
“A cause cannot be removed from a State Court simply because, in the progress of the litigation, it may become necessary to give a construction to the Constitution or laws of the United States. The decision of the case must depend upon that construction. The suit must, in part at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution or laws upon the facts involved.
******
“Before, therefore, a circuit court can be require to retain a cause under this jurisdiction, it must in some. form appear upon the record, by a statement of facts, ‘in legal and logical form,’ such as is required in good pleading, 1 Chit.Pl. 213, that the suit is one which ‘really and substantially involves a dispute or controversy’ as to a right which depends upon the construction or effect of the Constitution, or some law or treaty of the United States.” (emphasis supplied)
In Starin v. New York City, 115 U.S. 248, 6 S.Ct. 28, 29 L.Ed. 388 (1885) orders of the circuit court remanding a case which had been removed from a New York court, were appealed on the ground that the suit was one arising under the Constitution and laws of the United States.
With respect to that contention the Court said (p. 257, 6 S.Ct. p. 31):
“We will first consider whether the suit is one which arises under the constitution or laws of the United States; for, if it is not, the order to remand was right * * *.
“The character of a case is determined by the questions involved. Osborn v. Bank of U. S., 9 Wheat. 824 [22 U.S. 824, 6 L.Ed. 224], If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the constitution or laws of the United States, within the meaning of that term as used in the act of 1875 [the then extant Removal Act]; otherwise not. Such is the effect of the decisions on this subject.”
In affirming the circuit court’s remand of the removed case, the Court further stated (p. 258, 6 S.Ct. p. 32) :
“The decision of these questions [presented by the removed ease] does not depend on the constitution or laws of the United States. There is nothing in the constitution or laws of the United States entering into the determination of the cause, which, if construed one way, will defeat the defendants, or, in another, sustain them.” (emphasis supplied)
In Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205 (1912) the Court, following its declaration that “jurisdiction cannot rest on any ground that is not affirmatively and distinctly set forth” in the complaint, said:
“A suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laivs, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends.” (emphasis supplied)
In Gully v. First National Bank in Meridian, 299 U.S. 109, at p. 115, 57 S. Ct. 96, at p. 99, 81 L.Ed. 70 (1936), where the doctrine of Shulthis, Starin, and its predecessors, was cited and applied in reversing for failure to remand a removed case to the state courts, it was said:
“Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit.”
At pages 112-113, 57 S.Ct. at page 97-98 the Court said:
“How and when a ease arises ‘under the Constitution or laws of the United States’ has been much considered in the books. Some tests are well established. To bring a case within the [removal] statute, a right or immunity created by the Constitution or laios of the United States must be an element, and an essential one of the plaintiff’s cause of action (citing Starin and First National Bank of Canton, Pa. v. Williams, 252 U.S. 504, 512, 40 S.Ct. 372, 64 L.Ed. 690 [1920]). The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another (citing cases). A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto (citing cases), and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. (citing cases).” (emphasis supplied)
What was said, three years ago, in Pan American Petroleum Corporation v. Superior Court of Delaware In and For New Castle County, 366 U.S. 656, 662-663, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961) is of significant pertinence in the instant case.
There, in re-affirming the doctrines spelled out in Gully, these settled jurisdictional principles were stated and applied:
1. “[Qjuestions of exclusive federal jurisdiction and ouster of jurisdiction of state courts are, under existing jurisdictional legislation, not determined by ultimate substantive issues of federal law.”
2. “The answers depend on the particular claims a suitor makes in a state court — on how he casts his action. Since ‘the party who brings a suit is master to decide tohat law he will rely upon,’ The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716.”
3. It is “immaterial * * * that the plaintiff could have elected to proceed on a federal ground”, and “if the plaintiff decides not to invoke a federal right, his claim belongs in a state court.”
4. “It is settled doctrine that a case is not cognizable in a federal trial court, in the absence of diversity of citizenship, unless it appears from the face of the complaint that determination of the suit depends upon a question of federal law. * * * Apart from diversity jurisdiction, ‘a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action. * * * and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. * * * ’ Gully v. First National Bank, 299 U.S. 109, 112-113, 57 S.Ct. 96, 97, 81 L.Ed. 70.” (emphasis supplied).
Applying the principles stated to the instant case we can only conclude that it was not one “arising under” § 301(a), or any other law of the United States, so as to permit removal under § 1441, since the complaint was cast solely on a state-created right to bring suit for violation of a collective bargaining agreement and sought only a remedy available under state law, and there was nothing in the complaint which even remotely suggested that it asserted a claim based on § 301(a), or that it presented a “dispute or controversy respecting the validity, construction, or effect” of § 301 (a), “upon the determination of which the result [of the suit] depends.” We now revert to the “serious consequences”, earlier highlighted, which flowed from the denial of remand.
That denial effectively wrote “finis” to the plaintiff’s action for injunctive relief, available in the state courts, but unavailable in the federal courts. It was an “injustice” to the plaintiff because it denied it its right, under settled law, to be “master of its own case”, viz., the right to cast its action on state-created rights rather than on rights available under federal law, to wit, § 301(a); and it deprived it of the right to proceed in a state court despite the specific holding in Dowd that Congress, in enacting § 301(a), did not make that statute’s jurisdiction “exclusive”, nor did it intend “to deprive a party to a collective bargaining contract of the right to seek redress for its violation in an appropriate state tribunal.”
The denial of remand ousted the state court of its jurisdiction not only in contravention of the historic comity doctrine which proscribes avoidable conflicts between federal and state courts, but in disregard of Dowd’s specific holding that Congress did not intend in § 301(a) “to deprive the state courts of a substantial segment of their established jurisdiction over contract actions,” and “expressly intended not to encroach upon the existing jurisdiction of the state courts,” (emphasis supplied) in suits for violation of collective bargaining agreements in industries affecting interstate commerce.
The specific question presented in Dowd, as the Court put it, was “whether this federal statute [§ 301(a)] operates to divest a state court of jurisdiction over a suit for violation of a contract between an employer and a labor organization.”
The question arose reason of the fact that a Massachusetts trial trial court had rejected an attack upon its jurisdiction in an action by a union against an employer seeking money damages for violation of a collective bargaining agreement, and had subsequently rendered a money judgment in favor of the union. The Supreme Judicial Court of Massachusetts affirmed, ruling that' § 301(a) had not granted the federal courts exclusive jurisdiction over suits for violation of labor contracts in industries affecting interstate commerce.
In affirming the Massachusetts Court’s ruling, the Court said:
“We start with the premise that nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law. Concurrent jurisdiction has been a common phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule. * * * The legislative history makes clear that the basic purpose of § SOI (a) was not to limit, but to expand, the availability of forums for the enforcement of contracts made by labor organizations.” 368 U.S. 502, 507-509, 82 S.Ct. 519, 522-523, (emphasis supplied)
“The clear implication of the entire record of the congressional debates in both 1946 and 1947 is that the purpose of conferring jurisdiction upon the federal district courts was not to displace, but to supplement, the thoroughly considered jurisdiction of the courts of the various States over contracts made by labor organizations.” Id. page 511, 82 S.Ct. page 525 (emphasis supplied)
The Congressional purpose, “not to limit” or “to displace” state court jurisdiction over labor contracts, when it enacted § 301(a), was nullified by the denial of remand since it effectively sounded the death-knell of the state court’s jurisdiction over the removed action. Thus the denial made the Congressional purpose a co-victim with the plaintiff, which was deprived of its right to seek redress in a state court, and the state court, which was ousted of its concurrent jurisdiction.
In a removal proceeding under § 1441 that statute must be harnessed in a real sense to the specific federal law (here § 301(a)) relied upon as conferring original jurisdiction upon the District Court.
To hold that § 1441 may be recruited to defeat the Congressional purpose in enacting § 301(a) would be to mock reason and to deny justice, where as here, the complaint was based solely on state-created rights and did not, within its four corners, raise or present any controversy with respect to the validity, construction or effect of § 301(a) upon the determination of which the result of the action depended.
There remains for disposition the District Court’s holding that it also had original jurisdiction because other than injunctive relief — money damages— could be granted to the plaintiff under Rule 54(c) of the Federal Rules of Civil Procedure, and a general prayer for “such other relief as the Court may deem appropriate”, which followed the plaintiff’s prayers for specific injunctive relief in its complaint at the time of the removal.
With respect to the District Court’s reliance on Rule 54(c) we need only to call attention to the fact that Rule 82 of the Federal Rules specifically provides that “These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein.” (emphasis supplied) Rule 54(c) does not confer jurisdiction upon federal district courts and the District Court erred in holding to the contrary
It also erred in holding that the prayer for “such other relief” created original jurisdiction.
The holding could only be sustained on the theory that a complaint based on a single ground of breach of contract presents two separate and independent causes of action when it seeks two remedies — injunctive relief and money damages (assuming arguendo that this complaint can be construed as seeking money damages).
On this score it was recently held that:
“The prayer for relief is no part of the cause of action and should not be considered in determining whether such cause of action is ‘separate and independent’.” Puritan Fashions Corp. v. Courtaulds Limited, 221 F.Supp. 690, 695 (S.D. N.Y.1963).
While the District Court did not advert to the provisions of sub-section (c) of § 1441, it must be assumed that it had them in mind when it inferentially held that the “such other relief” prayer presented a cause of action for damages, “separate and independent”, from a cause of action seeking injunctive relief.
Section 1441(c) provides:
“Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.”
What was said in American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S. Ct. 534, 95 L.Ed. 702 (1951) in construing § 1441(c) is dispositive here:
“One purpose of Congress in adopting the ‘separate and independent claim or cause of action’ test for removability by.§ 1441(c) of the 1948 revision in lieu of the provision for removal of 28 U.S.C. (1946 ed.) § 71, was by simplification to avoid the difficulties experienced in determining the meaning of that provision. Another and important purpose was to limit removal from state courts. * * * ” 341 U.S. 9, 10, 71 S.Ct. 538.
“A separable controversy is no longer an adequate ground for removal unless it also constitutes a separate and independent claim or cause of' action. * * * Congress has authorized removal now under § 1441 (c) only when there is a separate and independent claim or cause of action.” Id. at pages 11, 12, 71 S* Ct. at pages 538-539.
“Considering the previous history of ‘separable controversy,’ the broad meaning of ‘cause of action,’ and the congressional purpose in the revision resulting in 28 U.S.C. § 1441(e), 28 U.S.C.A. § 1441(c), we conclude that where there is a single wrong-to plaintiff, for which relief is sought * * * there is no separate and independent claim or cause of action under § 1441(c).” Id. at pages 13, 14, 71 S.Ct. at page 540 (emphasis supplied)
On the score of the District Court’s; resort to the “such other relief” prayer to. establish a jurisdictional base we are compelled to note that there were pending at the time of the denial of remand two separate actions for damages brought, by the plaintiff against the defendants. here.
In summary, we are of the opinion that, a suit brought in a state court, based solely on state-created rights to enjoin a union’s violation, in the course of a labor-dispute, of the “no-strike” provisions of its collective bargaining agreement, is not removable to a federal district court* when the complaint does not disclose within its four corners that it presents a controversy respecting the validity, construction or effect of the Constitution of the United States or § 301(a) or any other federal law upon the determination of which the result of the suit depends.
We accordingly hold that the instant case “was removed improvidently and without jurisdiction” and that the District Court erred in failing to remand it to the State Court from which it was removed in compliance with the mandatory provisions of § 1447(c) of the Removal Statute.
Our brother Hastie disagrees on two grounds:- — (1) that § 4 of Norris-LaGuardia extends to state courts and consequently the Pennsylvania court here was “bound to * * * deny injunctive relief”, so that the plaintiff did not suffer ‘injustice’ by the denial of remand; and (2) in any event, the District Court had original jurisdiction within the Removal Statute because NorrisLaGuardia only limited its equity jurisdiction.
The sum of Judge Hastie’s position on the first point is that under the doctrine of Lincoln Mills and Lucas Flour federal courts fashion federal labor law in suits under § 301(a), or within its purview, and state courts must apply it as fashioned; further, since Sinclair has ruled that § 4 of NorrisLaGuardia bars federal district courts from granting injunctive relief that it is now the federal law, and “any state law authorizing the enforcement of a no-strike clause by injunction is incompatible * * *.”
We do not subscribe to the proposition that a federal court can extend the reach or sweep of a federal statute beyond its clearly defined provisions.
Courts have inherent power to construe legislation and to fashion remedies to effectuate the legislative design but they do not have power to legislate, directly or indirectly, nor can they amend legislation to extend its clearly defined limits under the shelter of their power to fashion remedies.
The Constitution of the United States has reserved to the Congress the power to legislate. Article I, section 1 provides that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”.
Not even the Supreme Court of the United States can usurp the legislative power reserved to the Congress by the Constitution. The Supreme Court itself has time and again paid homage to the doctrine of the separation of powers decreed by the Constitution and declared that judicial legislation is abhorrent to, and in violation of, the Constitutional scheme.
In Sinclair, upon which Judge Hastie relies to sustain his view that the NorrisLaGuardia Act extends to the states, even though it only held that the Act limits the jurisdiction of courts of the United States,' the Court said:
“The question of what change, if any, should be made in the existing law is one of legislative policy properly within the exclusive domain of Congress — it is a question for lawmakers, not law interpreters. Our task is the more limited one of interpreting the law as it now stands. In dealing with problems of interpretation and application of federal statutes, we have no power to change deliberate choices of legislative policy that Congress has made within its constitutional powers. Where congressional intent is discernible — and here it seems crystal clear — we must give effect to that intent.” 370 U.S. 214, 215, 82 S.Ct. 1339. (Emphasis supplied).
As earlier stated in this opinion, the Norris-LaGuardia Act declared in its title that it was:
“AN ACT
“To amend the Judicial Code and to define and limit the jurisdiction of courts sitting in equity.”
We further cited, in part, Section 2 of the Act — captioned “Declaration of the public policy of the United States” wherein it was stated:
“In the interpretation of this Act and in determining the jurisdiction and authority of the courts of the United States, as such jurisdiction and authority are herein defined and limited, the public policy of the United States is hereby declared as follows:
“ * * * therefore, the
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer:
|
songer_weightev
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Gerard A. FLOERSCH, Jr., Executor of the Estate of Gerard A. Floersch, Deceased, and Florence Alberta Floersch, Deceased, Appellant, v. MERCHANTS MOTOR FREIGHT, Inc., a Minnesota Corporation, George Meads and Barbara Kaisser, Appellees.
No. 15734.
United States Court of Appeals Eighth Circuit.
Oct 15, 1957.
Rehearing Denied Dec. 6, 1957.
James G. McDowell, Jr., Des Moines, Iowa, for appellant.
Donald T. Hines, Cedar Rapids, Iowa (Amor H. Sargent, Cedar Rapids, Iowa, on the brief), for appellees.
Before SANBORN, WOODROUGH, and VAN OOSTERHOUT, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
Gerard A. Floersch and Florence Alberta Floersch, husband and wife, while in an automobile owned and operated by Mr. Floersch, suffered injuries causing their deaths as the result of a collision with a truck driven by defendant Meads. Plaintiff, as executor of the estates of Mr. and Mrs. Floersch, brought this action for the wrongful death of each decedent, basing his right to recover upon both the specifications of negligence and the last clear chance doctrine. The case was tried to a jury. The court sustained defendants’ motion to direct a verdict for the defendants upon all claims based upon Mr. Floersch’s death. The claim for damages based upon Mrs. Floersch’s death was submitted to the jury upon the specifications of negligence, but not upon the last clear chance doctrine. The jury found for the defendants upon the cause of action on behalf of the decedent Mrs. Floersch, based on specifications of negligence.
This appeal is from final judgment entered against the plaintiff dismissing all claims asserted. Jurisdiction based upon diversity of citizenship and the jurisdictional amount is established.
The principal error urged upon this appeal is that the court erred in sustaining defendants’ motion for a directed verdict upon that portion of the plaintiff’s claim as to each decedent which was based upon the last clear chance doctrine, and in failing to submit the claim as to each decedent to the jury upon the last clear chance doctrine. No complaint is made that the court erred in directing the verdict in favor of the defendants upon the divisions of the complaint asserting a right to recover on behalf of Mr. Floersch’s estate upon the specific allegations of negligence. The sufficiency of the evidence to sustain the jury verdict for the defendants upon that portion of the claim on behalf of Mrs. Floersch’s estate based upon specific allegations of negligence is not challenged.
We proceed to examine plaintiff’s contention that the court erred in failing to submit the claims on behalf of each decedent, based upon the last clear chance doctrine.
The accident occurred in Iowa. All parties agree that Iowa law governs, and that the applicable Iowa law upon the last clear chance doctrine is set out in Menke v. Peterschmidt, 246 Iowa 722, 69 N.W.2d 65, at page 68, wherein the court states:
“III. It is well settléd that the requisites to an application of the last clear chance doctrine are evidence that the defendant had 1, knowledge of plaintiff’s presence; 2, realization of plaintiff’s peril; and 3, the ability to avoid the injury to ' plaintiff thereafter. * * * ”
We shall separately consider the three requisites of a cause of action based upon last clear chance.
Requisite No. 1 is a subjective test. Proof of actual knowledge by defendant of the plaintiff’s presence is required. This test is fully met by the evidence in this case. Defendant Meads had actual knowledge of the presence of the Floersch vehicle prior to the collision. Requisite No. 2, realization of plaintiff’s peril, is an objective test. Actual knowledge of plaintiff’s peril is not required. The test is met if the peril should have been realized by a person of ordinary prudence in the exercise of reasonable care. There is evidence to support a conclusion that some time before the collision defendant Meads realized the peril. The third requisite is defendant’s ability to avoid injury after realization of plaintiff’s peril. In a last clear chance situation defendant may not be charged with negligence occurring prior to the time he discovered or should have discovered the peril. In the Menke ease, supra, 69 N.W. 2d at page 69, the court states, “It is defendant’s negligence after he discovers or in the exercise of reasonable care should have discovered the plaintiff’s danger that brings the doctrine into effect.” The defendant must have “time to be negligent.” Mast v. Illinois Central R. Co., D.C.N.D.Iowa, 79 F.Supp. 149, 161, affirmed 8 Cir., 176 F.2d 157; Menke v. Peterschmidt, supra, 69 N.W.2d at page 72.
The Iowa court has not definitely determined whether the Iowa last clear chance doctrine is an exception to the rule barring recovery to one guilty of contributory negligence, or whether it is a phase of the doctrine of proximate cause. Menke v. Peterschmidt, supra; Mast v. Illinois Central R. Co., supra. In the last cited case, Judge Graven, after reviewing the applicable Iowa cases exhaustively, states (79 F.Supp. at pages 161-162):
“ * * * However, whatever may be the situation as to the theory of the rule, it seems that the Iowa Supreme Court apparently still recognizes the right of injured persons whose negligence continues up to the instant of the collision to have the benefit of the rule. * * * ”
The burden is on the pleader to prove the facts making the last clear chance doctrine applicable by a preponderance of the evidence. Menke v. Peterschmidt, supra, 69 N.W.2d at page 68; Mast v. Illinois Central R. Co., supra, 79 F.Supp. at page 160; Note 159 A.L.R. 724.
In the light of the principles of law just set out, we look to the evidence to determine whether the plaintiff has made a submissible case under the last clear chance doctrine. In examining the evidence we must, of course, examine it in the light most favorable to the plaintiff.
The collision between the truck and the Floersch automobile, which caused the injuries resulting in the death of Mr. and Mrs. Floersch, occurred about 10:35 P.M. on October 21, 1954, at a point on primary highway 30 about 27 feet east of the intersection of highway 30 and highway 212. Highway 30 runs east and west. Highway 212, from the place where it meets highway 30, runs in a southeasterly direction. There is a stop sign at this intersection stopping traffic entering highway 30 from highway 212. There is no road running to the north at the intersection of highways 30 and 212. Defendant Meads, as he approached the accident intersection, driving in a westerly direction on highway 30, was operating a tractor-trailer weighing 23,000 pounds, carrying a load of 30,-000 pounds, a legally permissible load. At the same time the Floersches were traveling northwest on highway 212 in their automobile. Defendant Meads, driver of the truck, is the sole surviving witness to the accident. His testimony is that he first saw the Floersch car when he was 400 to 450 feet east of the intersection. He was then traveling 40 to 45 miles an hour and had just put on his brakes to slow down for the intersection. At that time the Floersch car was just behind the stop sign on highway 212. Meads thought the car was going to stop, but instead it pulled directly north across the highway when Meads was about 125 feet way. The Floersch car continued north up to a point where its front wheels were about one foot north of the north edge of highway 30, the rear end of the Floersch car then extending across the north half of the pavement and to a point about three feet south of the center line of the highway. Meads, who had been traveling on the right or the north side of the road, immediately applied his brakes, blew his horn, and turned to the left as far as he could to attempt to avoid the collision. Before the collision his left wheels were on the south shoulder of the highway. When the truck reached a point about 50 feet from the Floersch automobile, the automobile commenced to back up across the highway in a southerly direction, and there was nothing Meads could do to avoid the collision. Meads further testified that if the Floersch car had not been backed up, he would have safely passed to the south of the automobile.
Meads’ testimony gains some corroboration from the physical facts. Two officers who came to the scene of the accident soon after it occurred testified to tire marks on the north shoulder of the pavement directly in line with the point of collision. They also testified as to skid marks made by the truck tires extending 125 feet back to the point of collision and heading in a southwesterly direction.
Plaintiff contends that the jury would not be compelled to believe Meads’ testimony. He states that Meads’ testimony at the trial as to his location when he first saw the Floersch car is inconsistent with the written statement he gave the coroner shortly after the accident and with the statement he gave the witness Shuttleworth the day after the accident. Meads’ statement to the coroner was offered in evidence by the plaintiff and received for all purposes without objection. Plaintiff relies particularly upon the following part of the statement:
“ * * * As I came over a hill going west at a point in Salt Creek Township, Tama County, Iowa, at what is known as intersection of Highway 30 and County Road No. 212, I noticed an automobile coming from No. 212 onto Highway 30. Said automobile was headed north, but [on] my portion of the Highway 30, I was travelling about 45 miles per hour at this time. As I approached said intersection from the east I operated my brakes which are air brakes controlled and in good condition. However, as it appeared the driver of the automobile was not going to clear my portion of the said Highway 30, I attempted to pass him on the left in order to avoid the collision. Just before contact was made, however, he reversed his movement and backed his car to the south but I was too close to his car to change my course of travel and we collided with the above results. * * *»
There is a hill east of the intersection. Plaintiff introduced undisputed evidence that a person coming down this hill as defendant Meads was could see the accident intersection when at a point 1500 feet distant therefrom. Plaintiff seizes on the words “As I came over the hill” in the statement given by defendant Meads to the coroner as meaning that Meads saw the Floersch car when he came over the top of the hill, and interprets Meads’ statement to the coroner as stating that Meads saw the Floersch car when it was 1500 feet distant. Plaintiff argues that such a statement is inconsistent with Meads’ testimony at the trial that he first saw the Floersch car when it was 450 feet away and his statement made to Shuttleworth the day following the accident that he saw the car when it was about 600 feet away.
Determination of the credibility of a witness falls within the province of the jury. It is true that a jury is not required to believe any witness. However, even if we assume that there is evidence from which the jury could find that Meads first saw the Floersch vehicle when it was 1500 feet distant, plaintiff still fails to make out a case of last clear chance.
It is definitely established that shortly prior to the collision the Floersch car had come to rest across the pavement, headed north, with its front wheels extending one foot north of the north edge of the pavement, blocking the north lane of the pavement and the north three feet of the south lane. In the argument on the motion for a directed verdict in the District Court the following colloquy took place:
“The Court: It seems to me that the evidence pretty conclusively establishes that their car was crosswise of the road over the north half.
“Mr. McDowell: I believe that is correct, your Honor.
“The Court: It would be pretty hard to get away from that.”
Defendant Meads’ testimony both at the trial and in his statement to the coroner is that he slowed down and turned to the left to pass. Meads testified at the trial that if Floersch had not attempted to back up he would have safely passed to the left of the automobile. This testimony is supported by the physical facts, the tire marks of the truck and the evidence showing adequate space on the south side of the pavement and adjoining shoulder to permit Meads to avoid the obstructing car. Consequently, it affirmatively appears that Meads was exercising reasonable care to avoid any collision after discovering the peril created by the position of the Floersch car on the highway. The only evidence of what happened thereafter is that offered by Meads. Such testimony is to the effect that the Floersch car started backing up to the south when Meads got within 50 feet of it. Meads’ testimony as to his speed is that he was traveling 40 to 45 miles per hour 450 feet from the intersection, 30 to 35 miles per hour 125 feet from the intersection, and 10 to 20 miles per hour at the point of collision. Meads testified that when the Floersch car backed up when he was 50 feet away, it was impossible for him to avoid the collision.
The only evidence in the record bearing upon the issue of discovery of peril occasioned by the Floersch car being backed across the road is that of Meads. If his testimony is to be believed, he did not discover the peril created by this car movement within sufficient time to avoid the collision by the exercise of ordinary care. He did not have time to be negligent. Menke v. Peterschmidt, supra; Note, The Iowa Doctrine of Last Clear Chance by Harry G. Slife, 34 Iowa Law Review 480. Again, plaintiff correctly states that a jury would not have to believe defendant Meads’ testimony. In answer to this the trial court states:
“Can you prove the affirmative of a hypothesis by assuming a falsity of what has been testified to? And that is what you have to do. A witness comes on and testifies so and so. By saying because he must have been lying a case is for the jury even though there is no evidence to sustain that charge.”
A somewhat similar problem confronted the court in the Menke case, supra. The court there states (69 N.W.2d at pages 70-71, 73):
“ * * * The appellee devotes much time to his argument that Mrs. Menke’s testimony is inconsistent and in many respects not credible. Without endorsing this contention, we think it immaterial in any event. Since she was the only witness who was present and who testified to what actually happened, if her testimony is not to be accepted, there is nothing substantial to show what she saw and what she did, or from which a last clear chance situation may be inferred. There are no presumptions of appellants’ negligence to aid appellee. He must recover upon the strength of his own case; a merely negative showing will not avail him.
******
“Something better than an opportunity for the jury to guess must be furnished by the litigant who assumes the burden of proving the applicability of the doctrine of the last clear chance. If the record here shows anything affirmative, it is that Mrs. Menke had no real time or opportunity — no ‘clear chance’— to avoid the collision within the meaning of the rule.”
See also Mast v. Illinois Central R. Co., supra, 79 F.Supp. at page 164.
In our present case, if Meads’ testimony as to the distance between the vehicles when the Floersch car started to back to the south is not to be believed, there is no evidence direct or substantial to indicate when in the sequence of events this backing up occurred, and there is no evidence to sustain plaintiff’s burden of proving that such backing occurred a sufficient time before the collision to afford defendant Meads an opportunity to avoid the collision by the exercise of reasonable care. We are satisfied that the court was justified in sustaining the motion for a directed verdict as to the divisions of the complaint on behalf of each of the decedents, based upon the last clear chance doctrine.
Plaintiff also contends the court committed error in instructing the jury upon the doctrine of sudden emergency. From the exception taken to the instruction and from the statements appearing in plaintiff’s brief, plaintiff’s objection to the instruction appears to be based on the giving of any instruction at all upon sudden emergency, rather than to the form of the instruction given. Enough of the evidence has heretofore been set out to indicate that there is substantial evidence to support a finding that defendant Meads was confronted with an emergency not of his own making. Under such circumstances, under Iowa law, an instruction upon sudden emergency is required. Merchants Motor Freight v. Downing, 8 Cir., 227 F.2d 247, 252. The court committed no error in giving the sudden emergency instruction.
The judgment appealed from is affirmed.
. Other defendants are the owner and lessee of the trailer tractor equipment. Their liability is dependent upon the liability of the driver, Meads.
. At p. 489 of the Law Review article, the author states: “The Iowa court has been very careful to require, particularly in the more recent cases, sufficient showing that avoidance would have been possible in the exercise of ordinary care. There are many cases approving the trial court’s directed verdict for defendant where the record clearly shows that after discovery of plaintiff’s position and facts justifying realization of his peril, there was not sufficient time to avoid the aceident, and there are many more eases reversing a judgment for plaintiff because under the record the trial court should have directed a verdict for defendant for the same reason.”
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:
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songer_appel1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
UNITED STATES of America, Plaintiff, Appellee, v. Alex MARKLEY, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Antonio SUARES, Defendant, Appellant.
Nos. 77-1209, 77-1210.
United States Court of Appeals, First Circuit.
Argued Oct. 6, 1977.
Decided Dec. 16, 1977.
Allen R. Rosenberg, Boston, Mass., with whom Robert M. Schwartz and Putnam, Bell & Russell, Boston, Mass., were on brief, for appellants.
James E. O’Neil, Asst. U.S. Atty., Boston, Mass., with whom Edward F. Harrington, U.S. Atty., Boston, Mass., was on brief, for appellee.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and CRARY, District Judge.
Of the Central District of California, sitting by designation.
CRARY, District Judge.
This consolidated appeal is from convictions on Counts 2 to 9, inclusive, of the Indictment charging appellant Markley with one count (Count 2) of possessing an unregistered destructive device in violation of Title 26, U.S.C. § 5861(d), and four counts of transferring an unregistered destructive device in violation of Title 26, U.S.C. §§ 5812, 5861(d), 5861(e), and Title 18, U.S.C. § 2.
Appellant Suares was found guilty of three counts of possessing an unregistered destructive device and three counts of transferring an unregistered destructive device.
Count 1, which charged conspiracy of the defendants to maliciously attempt to damage and destroy vehicles used in interstate commerce by means of an explosive, was dismissed following trial.
Motion for judgment of acquittal and to dismiss for insufficiency of the evidence was denied. In addition to asserting insufficiency of the evidence, appellants contend that the statute (26 U.S.C. § 5845(f)(1)) is unconstitutionally vague and that the trial court erred in that (1) it did not instruct the jury that a destructive device must be highly destructive and dangerous, (2) it failed to instruct as to a definition of “bomb” and gave instructions which equated “explosive” with “explosive bomb”, (3) it failed to instruct that a destructive device must have the capability to cause destruction, and (4) it failed to give an instruction properly defining “explosion” and “explosive.”
The appellants have stipulated that they possessed and transferred the devices as charged.
The four devices involved, one delivered November 7th and three on December 8th, 1975, and the exemplars constructed by the Government for testing purposes, were cardboard tubes approximately 4.5 inches in length, 1.5 inches in diameter, containing 3.5 to 4.5 ounces of commercially manufactured black powder with a small amount of toilet tissue as a filler, followed by cardboard discs. The ends of the tubes were sealed with paraffin wax. In one end was affixed a fuse.
The first device, received by the Government’s undercover agent, O’Reilly, from appellant Markley on November 7, 1975, was tested at Fort Devens on November 10, 1975. The three devices delivered to O’Reilly by Suares on December 8, 1975, were dismantled by the Government on December 10, 1975. Each of these three devices, when received, were wrapped with black friction tape covering their entire length. The exemplars of these three devices as constructed by the Government, were tested.
Eleven tests in all were made involving the first device delivered and the exemplars, which were made for testing purposes.
Professor Emmons, appellants’ expert, conducted tests on February 10, 1977, and viewed the moving pictures of the tests made by the Government previous thereto and concluded that if such devices were fired in the open against the outside of a car or house it would only scorch the paint and that such devices would not produce a violent explosion or bursting and that they were not highly destructive devices. In one of Professor Emmons’ tests conducted in the open, ignition resulted in a fire ball of eleven cubic feet. Another firing caused the top of a trash barrel to fly 25 to 30 feet in the air although the barrel and top were not damaged.
The tests conducted by the Government expert, Ralph Cooper, Explosive Enforcement Officer from the Bureau of Alcohol, Tobacco and Firearms, in November, 1976, varied in their destructive aspects. Firing of an exemplar in the open resulted in minimal damage. Cooper testified that “the blast pressure wave” caused by the ignition of an exemplar in the front seat of the cab of a Ford pickup truck with windows and doors closed, blew out the windshield with sufficient force to propel it about six to eight feet in front of the truck where it fell to the ground and broke. This test resulted in a report, fire ball engulfing the cab and a searing of the front seat where the device had been placed. One of the exemplars was placed under the hood of the Ford pickup on the engine block where it produced a fire ball but did not do any discernible damage.
In another test by Cooper, an exemplar was ignited inside the filler pipe attached to an empty gas tank. The filler pipe burst and the gas tank was bulged by the explosion. Cooper gave it as his opinion that if there had been a gas-air mixture in the tank it would have created a vapor explosion which would have ruptured the gas tank.
Mr. Cooper testified that in his opinion the subject devices were explosive bombs, that they contained an explosive black powder, had a delay explosive firing train (fuse) and were designed and constructed as weapons capable of producing damage to vehicles. He also said that the black powder was “an explosive and it’s designed to be exploded.”
Neither the appellants nor the Government disputed the facts as to each other’s tests.
The Government undercover agent, O’Reilly, testified that on or about November 7, 1975, a Union organizer, appellant Markley, told him of a strike in progress at the Worthington plant in Holyoke, Massachusetts, and asked him to take care of a couple of trucks belonging to Martin Brothers Trucking Company, which had been giving the Union trouble. Markley gave O’Reilly a bomb to test, and after the test was made at Fort Devens O’Reilly told Markley that the device would not do.
Several times after the strike was over O’Reilly met with Markley and discussed other devices. On November 28, 1975, O’Reilly met both appellants and drove with them for several hours stopping at bars and package stores and during that time discussed the strike, and Markley said he still had in mind blowing up two of Martin Brothers trucks. O’Reilly offered to do that for $300 but nothing further developed on that subject. O’Reilly was wearing a body recorder and the conversations were recorded.
On December 5,1975, O’Reilly telephoned Markley stating he had a job out Markley’s way and needed three of the type of devices Markley had given him before, each to be double taped with different length fuses. He told Markley he was willing to pay $25 a piece. The three devices, assembled and intact, were delivered to O’Reilly by appellant Suares on December 8, 1975, on payment of $75.
The parties agreed that the crucial question of fact for the jury’s determination was whether the devices involved were destructive devices within the meaning of 26 U.S.C. § 5845(f).
In testing the sufficiency of the evidence from which a jury could find guilt beyond a reasonable doubt, the rule is well established that the view most favorable to the Government shall be taken. United States v. Leach, 427 F.2d 1107, 1110 (1st Cir. 1970).
Congressional history indicates that, to stem traffic in dangerous weapons, Congress passed the Omnibus Crime Control and Safe Streets Act, P.L. 90-351, in June, 1968, which amended the criminal provisions as to firearms, Title 18, U.S.C. § 921, et seq. The provisions of Public Law 90-351 were not satisfactory and in October, 1968, Congress passed the Gun Control Act, P.L. 90-618, further amending Title 18, U.S.C., and revising the National Firearms Act, 26 U.S.C. § 5801, et seq. “Destructive Devices” were included under “firearms” for the first time in the Crime Control Act, P.L. 90-351, and, somewhat redefined, were included in the provisions of both Title 26, U.S.C. § 5845 and Title 18, U.S.C. § 921. The legislative history of Public Law 90-351 refers to highly destructive devices, pages 2167 and 2199, legislative history footnote 2. However, destructive devices are not referred to in the legislative history of P.L. 90-618 as highly dangerous or destructive.
It is also to be noted that neither “highly” nor any other modification of “destructive device" is used in the legislation defining destructive device in either Section 5845(f) of Title 26 or Section 921(a)(4) of Title 18.
It is the Government’s contention that the devices in the case at bench are “explosive bombs” and the Court instructed the jury that was the issue for its determination.
In United States v. Posnjak, 457 F.2d 1110, 1116 (2nd Cir. 1972), the Court held that Section 5845(f)(1) applied to only military ordnance or gangster type weapons, observing that Congress was concerned in the National Firearms Act with weapons which were the cause “ * * * of increasing violent crime and which had no lawful uses and the intent of the user of these weapons was irrelevant as they were so prone to abuse that they were considered per se dangerous and unnecessary for legitimate pursuits.”
In the case at bench the Court instructed the jury that they were not to consider the intent of the defendants as to the intended use of the devices involved, in determining the issue of whether they were dangerous within the terms of the statute.
This Court, in United States v. Curtis, 520 F.2d 1300 (1st Cir. 1975), adopted a broader interpretation of the statute than that of the Court in Posnjak, supra. Two devices were involved in the Curtis case. The one held to be a destructive device was described as “consisting of approximately eight to ten sticks of dynamite bound together and with a black box bound to them.”
The conviction of the defendants of possession of the above described unregistered firearms was affirmed.
The Court, after quoting the pertinent portions of Section 5845(f), which defines “destructive device,” discusses cases involving the issue and then says:
“The statutory purpose would be ill-served by an interpretation which excluded from coverage ‘home-made’ bombs have no lawful use simply because one of the components was dynamite, a material not in itself regulated as a firearm. Thus, while gasoline, bottles and rags all may be legally possessed, their combination into the type of home-made incendiary bomb commonly known as a Molotov cocktail creates a destructive device.” [Citations omitted.] p. 1304.
In the case of United States v. Ross, 458 F.2d 1144 (5th Cir. 1972), a molotov cocktail, a home-made device, was held to be a “destructive device” under Section 5845(f).
The Ninth Circuit, in United States v. Peterson, 475 F.2d 806, 810 (9th Cir. 1972), in affirming a defendant’s conviction of violation of the Firearm’s Act, stated:
“We have concluded from a perusal of the legislative history of the act that Congress * * * intended to foster law and order among the public by the proscription of original and converted military type weapons and, also, the do-it-yourself type of similar devices and weapons of crime, violence and destruction.”
The Court was there concerned with a home-made incendiary device, consisting of a casing 3 to 4 inches long filled with fuel material containing black powder and likened by the Court to a molotov cocktail. See also United States v. Morningstar, 456 F.2d 278, 280-281 (4th Cir. 1972); and United States v. Oba, 448 F.2d 892 (9th Cir. 1971).
We conclude that there was sufficient evidence to support a jury finding that the home-made devices in this case are destructive devices having no legitimate social purpose and fall within the provisions of Section 5845(f) regardless of their intended purpose.
Is Section 5845(f) unconstitutionally vague?
The need for adequate warning by the terms of Title 26, U.S.C. § 5845(f), that the devices in question fall within the provisions of that statute, is well established. The statute would be void for vagueness if it does not delineate the conduct it prohibits.
This Court, in Goguen v. Smith, 471 F.2d 88, 95 (1st Cir. 1972), in holding “treats contemptuously,” referring to treatment of the flag of the United States in public, to be too vague, stated that among the well established principles upon which the void for vagueness doctrine is predicated is one that no person shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. That case also holds that criminal statutes should be definite enough to obviate arbitrary enforcement.
The Supreme Court in Jordan v. De-George, 341 U.S. 223, 231-232, 71 S.Ct. 703, 708, 95 L.Ed. 886 (1951), said, with respect to vagueness:
“The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.”
The Court there held the phrase “crime involving moral turpitude” did not lack sufficient definite standards.
In United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954), the Supreme Court says:
“The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” p. 617, 74 S.Ct. p. 812.
In considering the question of whether the statutory definition of “destructive device” is unconstitutionally vague, the Court, in United States v. Morningstar, 456 F.2d 278 (4th Cir. 1972), held that there was no merit to that argument, stating:
“Nor do we find merit in Morningstar’s plea that the Gun Control Act of 1968 is too vague to satisfy the requirements of due process. Questions about the Act’s definitions arise only when resort is made to legislative history for the purpose of limiting the accepted meaning of simple and well known words. On its face, the definition of a destructive device gives fair notice to a person of ordinary intelligence that it includes any combination of parts intended to be used as a bomb or weapon and from which a bomb or weapon can be readily assembled. See United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954).'” p. 281.
The Court of Appeals vacated the order of the District Court dismissing the Indictment, which charged the appellee with possession of a destructive device, and remanded the case for further proceedings, ruling that four sticks of black powder pellet explosive fastened together with electrical tape and several unattached blasting caps could constitute a “destructive device” as a combination of parts intended for use as a bomb and from which a bomb could be readily assembled.
The Fifth Circuit considered the vagueness issue as to “destructive devices” defined in Section 5845(f), in United States v. Ross, supra, 458 F.2d 1144 (1972), holding:
“With reference to a Molotov cocktail, the part of the definition of ‘destructive device’ that refers to ‘(B) grenade * * or (F) similar device’ is not so vague as to be outside the constitutional requirements that a person of reasonable intelligence be forewarned what is prohibited. [Citations omitted.] Section 5845(f) itself contains the crucial limitation that a destructive device does not include any device not designed or redesigned for use as a weapon. A Molotov cocktail has no use other than as a weapon, and a person may be charged with knowledge of its similarity to a grenade.” p. 1145.
There is no evidence in the case at bench to, in any way, indicate that the devices here had any use in support of a social value.
We conclude that the defendants dealing in the devices here involved were well aware of their destructive propensities and that these devices had no legitimate social purpose. Section 5845(f)(1) provides adequate notice that the devices would be included within the term “explosive, * * (A) bomb, * * * or (F) similar device,” and a person of ordinary intelligence would be so aware in the circumstances of this case.
Jury Instructions
At the bench conference following the Court’s instructions to the jury, appellants’ counsel objected to the failure to give their instruction No. 18 which instructs that the devices “ * * * must be explosive bombs or be similar to an explosive bomb” and must be highly destructive devices.
The Court did instruct the jury that it had to determine whether the devices were explosive bombs, stating: “Thus, unless you find beyond a reasonable doubt that the devices in question are explosive bombs in and of themselves, you must find each defendant not guilty of the charges in this particular case.” The Court was not required to instruct the jury that the devices must be highly destructive to be destructive devices within the statute.
Counsel at the bench also requested the Court to instruct the jury that “just because it is an explosive it is not an explosive device.” After full consideration of the instructions given by the Court relating to “explosive”, “explosion” and explosive device, we conclude the jury was adequately instructed on appellants’ theory of their defense and that there was no reversible error in not complying with appellants’ request.
Appellants, for the first time on appeal, cite as error the Court’s failure to define “bomb.” We conclude that not giving such an instruction is not clearly erroneous when all of the Court’s instructions as a whole, are considered. . .
The convictions are affirmed.
The judgments are ordered corrected to set forth the Code sections, the violations of which the appellants were convicted as follows:
The judgment of conviction of defendant Alex Markley is corrected by striking “Sections 1561(d), 1561(e)” and substituting in the place and stead thereof, “Sections 5861(d), 5861(e),” the latter two sections being those of which the defendant Markley was indicted and convicted.
The judgment of conviction of defendant Antonio Suares is corrected by striking “Sections 1561(d), 1561(e)” and substituting in the place and stead thereof, “Sections 5861(d), 5861(e),” the latter two sections being those of which the defendant Suares was indicted and convicted.
The judgments as so corrected shall be in full force and effect.
The judgments as corrected are affirmed.
. Section 5845(f), Title 26, in relevant part provides:
“The term ‘destructive device’ means (1) any explosive, incendiary, * * * (A) bomb, (B) grenade, * * * (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, * * * (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined at subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term ‘destructive device’ shall not include any device which is nei-
ther designed nor redesigned for use as a weapon« ^ **
. Volume 2, U.S. Code Cong, and Admin. News, 90th Congress, 2nd session, 1968, p. 2112.
. Volume 3, U.S. Code Cong, and Admin. News, 90th Congress, 2nd session, pp. 4410 to 4435. The House bill was passed in lieu of the Senate bill.
. A molotov cocktail is defined in Webster’s Third New International Dictionary as “a crude hand grenade made of a bottle filled with flammable liquid (as gasoline) and fitted with a wick or saturated rag taped to the bottom and ignited at the moment of hurling.”
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_counsel1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Daniel ELCHUK, Appellant, v. UNITED STATES of America, Appellee.
No. 18932.
United States Court of Appeals Fifth Circuit.
Dec. 11, 1962.
Milas C. Bradford, Jr., Houston, Tex., for appellant.
Robert A. Hall, Robert C. Maley, Jr., Asst. U. S. Attys., Houston, Tex., for appellee.
Before HUTCHESON, WISDOM and GEWIN, Circuit Judges.
PER CURIAM.
When this case was last here, the judgment appealed from was affirmed. Pursuant to the mandate of the Supreme Court, this judgment of affirmance was, upon the suggestion of the Solicitor General, vacated, and the cause was remanded to this court “for further proceedings in which the petitioner is to be accorded the opportunity to present oral argument on the merits ' of his appeal, either personally or through counsel, to the same extent as such opportunity is accorded to the United States Attorney”, a procedure which has been the uniform practice of this court for the last thirty years.
Upon such re-submission, this court, being well advised in the premises, determined, as it had before determined, that the judgment appealed from should be affirmed, and it is accordingly so ordered.
. Elchuk v. United States, 5 Cir., 296 F.2d 723.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_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.
UNITED STATES of America, Appellee, v. Paul BAUER, Appellant.
No. 82-5346.
United States Court of Appeals, Fourth Circuit.
Argued May 13, 1983.
Decided Aug. 2, 1983.
Fred Warren Bennett, Federal Public Defender, Baltimore, Md. (Richard B. Bardos, Law Clerk on brief), for appellant.
Robert B. Green, Asst. U.S. Atty., Baltimore, Md. (J. Frederick Motz, U.S. Atty., Baltimore, Md., on brief), for appellee.
Before RUSSELL, PHILLIPS and MURNAGHAN, Circuit Judges.
MURNAGHAN, Circuit Judge:
Paul Bauer was convicted, following a non-jury trial in the United States District Court for the District of Maryland, of a violation of 18 U.S.C. § 641. In its entirety, that statute provides:
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted— Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum qf $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. The word “value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.
The indictment charged only, in accordance with the second paragraph, that “Bauer did knowingly and wilfully conceal and retain a thing of value in excess of $100.00 of the United States ... that is ... 234 ... Series E United States Savings Bonds having a face value of $7,350.00 with intent to convert them to his use and gain, ... knowing] that said items had been embezzled, stolen, purloined or converted.”
The consequence is a tortuous trail through words to determine whether the evidently bad acts of Bauer fell under paragraph 2 of § 641 as charged, or whether they at most amounted to some other crime for which Bauer was not indicted.
Between December 15, 1978 and January 2, 1979, breaking and entering occurred at the Baltimore, Maryland residence of Mr. and Mrs. Leo William Shifflett. Stolen were 234 United States Series E Savings Bonds having an aggregate face value of $7,350.00 registered in the names of the Shiffletts or of their daughter. The Shiffletts, in June 1979, having provided an indemnity bond, obtained replacement bonds. Thereupon the stolen bonds became the property of the United States.
Bauer on August 27, 1982 attempted to sell the stolen bonds. On apprehension he acknowledged having stolen them from the Shifflett residence.
I
First Bauer contends that the bonds, having been replaced, were not things of value. Their status as things concealed or retained by Bauer certainly could be inferred, he having had them when they were stolen and still three and one-half years later when he attempted to sell them. The thief clearly knew them to have been stolen. The argument of Bauer centers on the claim that the bonds had no value and that, consequently, the Government suffered no property loss. The fallacy, however, is apparent in the plain language of the statute which defines value as: “face, par, or market value, or cost price, either wholesale or retail, whichever is greater.” 18 U.S.C. § 641. Furthermore, Bauer’s expectation that he could sell the bonds, and his attempt to do so, in the circumstances of the ease, belie the contention that they were without value or were worth not more than $100
Bauer also points to the fact that § 641 punishes concealment or retention of a “thing of value of the United States ” (emphasis supplied), and emphasizes that the bonds when stolen were the property not of the United States but of the Shiffletts. However, concealment and retention continued up until the attempted sale in August 1982, a period lasting well beyond the time of the issuance of replacement bonds to the Shiffletts. Hence, while ownership shifted from the Shiffletts to the United States, in the course of the offense committed by Bauer, the status of the bonds as a thing of value remained undisturbed. The face value of the bonds did not change. Ownership, however, now was the Government’s, no longer the Shiffletts’.
Despite those substantial hurdles, Bauer has succeeded in locating authority to lend support to his position. United States v. Fleetwood, 489 F.Supp. 129 (D.Ore.l980). However, that case differs in an important, indeed a controlling, way. There the facts were extremely like those in Bauer’s case. The charge, under 18 U.S.C. § 641, was concealing and retaining stolen United States Savings Bonds and Freedom Share Notes. The stolen bonds had been replaced by the Government and were never cashed. However, the district judge in Fleetwood never alludes to, far less relies on, the regulation spelling out the property interest arising in the Government upon replacement of bonds following theft. That presumably is because the regulation was not called to the judge’s attention.
Making no claim under the predecessor regulation, the prosecution in Fleetwood was forced to argue a concept of retained general governmental possessory rights in indicia of claims of others against the Government, an issue which we, in light of the pertinent regulatory language, need not, and do not, address.
From the prosecution’s point of view, a helpful aspect in Fleetwood lies in the conclusion of the district judge that the crime was a continuing one, not confined in its occurrence to 1970 when the thefts occurred, but running on uninterruptedly until March 31, 1979. Thus, from and after the replacement of the bonds stolen by Bauer, and accompanying assumption of full property rights therein by the Government in June 1979, until August 27, 1982, a continuing crime against the Government was taking place, regardless of whether any such crime was made out for the period prior to June 1979.
Furthermore, Fleetwood accepts that valuation,- even though the Government had replaced the bonds in the hands of the victims, was determined by the face value of the bonds. See 489 F.Supp. at 134.
II
Bauer alternatively asserts that the two paragraphs of 18 U.S.C. § 641, one designed to punish embezzlement, theft, purloining or conversion, the other receipt, concealment or retention of property of the United States, are to be construed in such a way as to bar altogether the charging of the thief, whether or not he has ever been prosecuted for theft, with the crime of receiving, concealing or retaining. Bauer relies on the common law rule prohibiting conviction of a single individual, on the basis of the same events, for both (a) theft and (b) receiving stolen property. It may well be, but, fortunately, we are not called upon to decide, that the common law concept contemplates only a receiving offense commencing contemporaneously with the theft and asportation. Here, there was a substantial intervening period between theft on a day or days between December 15, 1978 and January 2, 1979, on the one hand, and the replacement of the stolen bonds by the Government in June of 1979, on the other. Furthermore, even if the bonds remained throughout, for our purposes here, things of value of the United States, concealment or retention is not necessarily identical with receiving. We perceive no indication that Congress, by silence, meant to import into the statutory framework of 18 U.S.C. § 641 the common law concept.
The person who steals a government truck may alternatively be convicted of receiving, concealing and retaining the vehicle. United States v. Trzcinski, 553 F.2d 851, 852 (3d Cir.1976), cert. denied, 431 U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977). The court for entirely convincing reasons “opt[ed] for a literal, rather than a historical reading of the statute” and decided that “a defendant may be convicted for the receipt and possession of stolen goods when the evidence discloses that he was in fact the thief.”
Acquittal of theft does not preclude conviction, on the basis of autrefois acquit, of the crime of receiving and retaining the stolen property. Gf. Phillips v. United States, 518 F.2d 108, 110 (4th Cir.1975) (en banc), remanded, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 728 (1976), 538 F.2d 586 (1976).
The case which Bauer asserts compels a contrary result is Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961). However, it only determined that conviction both for theft and for receipt of the stolen goods was impermissible. The holding was that conviction on either charge was permissible. Trzcinski, supra, at 853. That is quite different from Bauer’s contention that only one of the charges would properly lie in the first place.
Accordingly, the judgment is
AFFIRMED.
. 31 C.F.R. § 315.28 (1982):
Recovery or receipt of bond before or after relief is granted.
(a) Recovery prior to granting relief.
(b) Recovery subsequent to granting of relief. A bond for which relief has been granted is the property of the United States and, if recovered, must be promptly submitted to the Bureau of the Public Dept., Parkersburg, West Virginia 26101, for cancellation.
Bauer stipulated that:
Once the replacement bonds were delivered to Mr. and Mrs. Shifflett, the stolen bonds became the property of the United States pursuant to 31 C.F.R. Section 315.28(b).
. Bauer negotiated a sale for $4,500 with an undercover Government agent.
. See United States v. Carr, 706 F.2d 1108 (11th Cir.1983), a case brought to our attention after our opinion had been prepared and circulated, which effectively exposes the fallacy of Bauer’s contention. Carr also convincingly repudiates the assertion, discussed infra, that there was no proprietary interest in the United States in stolen savings bonds.
If the value were not in excess of $100, the maximum sentence would be a fine of $1,000 or imprisonment of one year, or both. The sentence imposed on Bauer was five years, with the last 4'/2 years suspended.
. Unawareness by Bauer that ownership had shifted to the United States did not affect guilt. “Knowledge that stolen property belonged to the government is not an element of the offense. The sole reason for including the requirement that the property belongs to the government is to state the foundation for federal jurisdiction.” Baker v. United States, 429 F.2d 1278, 1279 (9th Cir.1970), cert. denied, 400 U.S. 957, 91 S.Ct. 354, 27 L.Ed.2d 265 (1971).
. The regulation in its current form was not published for notice and comment until September 26, 1980, 45 Fed.Reg. 64,091 (September 26, 1980), whereas Fleetwood’s possession and hence his retention and concealment, terminated on March 31, 1979. The predecessor regulation did, however, provide: “A bond which is recovered after relief therefor has been granted belongs to the United States.... ” 31 C.F.R. § 315.28 (1979).
. Cf. United States v. Alberico, 604 F.2d 1315, 1321-22 (10th Cir.1979).
. W. LaFave & A. Scott, Criminal Law 689 (1972).
. The time passage consideration is one that should not be lost sight of. In Fleetwood, supra, nine years had elapsed before the thief was identified. The statute of limitations is five years. 18 U.S.C. § 3282. Yet the attempt to dispose of the stolen property for gain occurred only on March 31, 1979. Upon discovery of his identity, he was promptly indicted, the district court decision having been rendered on April 29, 1980. It would have yielded a bizarre result to hold that, first, the defendant, as the one who stole the bonds, was insulated by the lapse of five years from conviction for theft under paragraph 1 of 18 U.S.C. § 641, and, second, that he, being the thief, because of mutual exclusivity, could not even be charged under paragraph 2 of concealing and retaining, which he had continued to do until a very recent time before his indictment and prosecution.
Indeed, if Bauer is correct, as he might well be, that until the replacement bonds were issued there was no sufficient property interest in the United States to support a theft conviction, see Fleetwood, supra, he will have discovered a glaring loophole. From the very outset he could not be convicted under paragraph 1 of § 641 for theft because of the absence of a jurisdictional predicate, namely, a thing of value of the United States. Also, from the outset, he would, as the thief, not fall within the terms of § 641 paragraph 2.
. It is to be noted that 18 U.S.C. § 641 speaks in the alternative: “Whoever receives, conceals or retains ...” (emphasis supplied), and that only concealment and retention were charged in the indictment. See, however, United States v. Sellers, 520 F.2d 1281, 1286 (4th Cir.1975), vacated, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 728 (1976), modified, 547 F.2d 785 (4th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977) (“We are unpersuaded by the Government’s proffered distinction between ‘receiving’ and ‘possession’ .... ”); see also United States v. Minchew, 417 F.2d 218, 219 (5th Cir.1969), cert. denied, 397 U.S. 1014, 90 S.Ct. 1246, 25 L.Ed.2d 427 (1970):
The holding [that a person cannot be convicted and punished for both stealing Government property and for receiving the same property] probably includes concealing and retaining the stolen property.
We are not presented, however, with an attempt to convict Bauer of both. Minchew, for our purposes, confirms that the Government may elect to charge, and obtain a conviction for, either theft or for receiving, concealing or retaining. That is to say that the crimes are not mutually exclusive. They are only noncumulative. Cf. Sellers, supra, at 786: [United States v.] Gaddis [424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976) ] provides that instructions may be given on both the theft and the possession counts, but that convictions may not be sustained on both counts arising out of the same set of facts.
. The principle underlying the concept that a thief would not “receive” stolen goods from himself “is based either upon the theory of avoiding the infliction of a double penalty or ' upon the philosophic consideration that a single act may not constitute both the larceny and the receiving.... [T]he question [under 18 U.S.C. § 641] is one of statutory construction, not common law distinctions.” United States v. Trzcinski, 553 F.2d 851, 853 (3d Cir.1976), cert. denied, 431 U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977).
In all events, the critical word is both. The Government has not sought to charge Bauer with theft. Upon affirmance of his conviction for concealing and retaining, double jeopardy will preclude a prosecution for theft, because of the dual punishment implications.
Double jeopardy would not, however, preclude prosecution under a two-count indictment charging (a) theft and (b) retaining and concealing. It would simply forestall convictions under both. Gaddis, supra, 424 U.S. at 550, 96 S.Ct. at 1027.
. Such is also the holding in Phillips, supra.
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_r_subst
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SOUTHERN RY. CO. v. MONTGOMERY.
No. 6058.
Circuit Court of Appeals, Fifth Circuit.
Feb. 18, 1931.
R. H. Scrivner, of Birmingham, Ala., Ely B. Mitchell, of Corinth, Miss., and J. T. Stokely, of Birmingham, Ala. (T. A. Clark, of Iuka, Miss., on the brief), for appellant.
Jas. A. Cunningham, of Booneville, Miss. (Floyd W. Cunningham, of Booneville, Miss., on the brief), for appellee.
Before FOSTER, Circuit Judge, and GRUBB and DAWKINS, District Judges.
FOSTER, Circuit Judge.
Appellee recovered judgment against appellant for $25,000, damages for personal injuries caused by his automobile being run into and himself injured ou a grade crossing of appellant’s railroad. Briefly stated, the declaration alleges that plaintiff stopped his car and killed his engine on a public road before crossing the track; that a freight train was being switched on the track and his view was obscured by other cars standing on the switch tracks; that the way across the tracks was open; that ho was signaled to by the conductor of the freight train to come •across; that ho did so and the train was negligently backed up by the engineer, causing the accident. It was alleged that the engineer was negligent in reversing his engine and backing his train upon the crossing, and that the conductor was negligent because he failed to make any distress signal to the engineer or to take any precaution to prevent the accident. It was not alleged that the action of the conductor in signaling the plaintiff to cross the track was negligent. In the course of his instructions to the jury the court gave the following charge to.which error is assigned: “Now, gentlemen, if yon believe from a preponderance of the evidence in this ease that the plaintiff, Dr. Montgomery, while in a safe place, was given an invitation by an employee of the railroad company present on this occasion, to proceed to cross the railroad track, and that Dr. Montgomery, in pursuance to this invitation extended to him to cross the railroad track, was injured because of his invitation, it would be your duty to find a verdict for plaintiff.”
This instruction was several times repeated in substantially the same language and was clearly the main issue upon which the case was submitted to the jury. From the facts shown, the mere invitation to cross the track could not possibly have been negligence without the concurring negligence of the engineer in backing up his train. Nowhere in the charge of the court was this theory of the case submitted to the jury, nor was the theory of appellant’s defense that the plaintiff mistook a signal to the engineer to back up for a signal to cross the track, although charges to that effect were request ed. Even had the invitation to cross amounted to negligence, it is well settled that in federal courts a plaintiff can recover only on the allegations of his pleadings and cannot recover on some other act incidentally appearing in the proof. Hines v. Jasko (C. C. A.) 266 F. 336; Union Pac. v. Garner (C. C. A.) 24 F. (2d) 53; Wash. Railroad v. Bradley, 77 U. S. (10 Wall.) 299, 19 L. Ed. 894, It follows that the instruction was misleading and erroneous.
Appellant complains that the verdict is so excessive as to evince passion and prejudice on the part of the jury. While this criticism would seem to be somewhat justified, this was a matter to be considered by the trial court and to be controlled by requiring a remittitur or by awarding a new trial. N. Pac. R. Co. v. Herbert, 116 U. S. 642, 6 S. Ct. 590, 29 L. Ed. 755; Gila Valley Ry. Co. v. Hall, 232 U. S. 94, 34 S. Ct. 229, 58 L. Ed. 521. We have no jurisdiction to correct a verdict because it is excessive.
Other errors assigned are not without merit, hut, as the erroneous charge requires a reversal and they may not recur, we refrain from discussing them.
Reversed.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_late
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to decide the appeal because the appellant failed to comply with some rule relating to timeliness of the appeal (e.g., failed to pay the filing fee on time or missed the deadline to file the appeal)?" 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 v. Moses LEWIS, Appellant.
No. 71-1202.
United States Court of Appeals, Third Circuit.
Argued Jan. 26, 1972.
Decided March 7, 1972.
Albert A. Sheen, Hodge & Sheen, Christiansted, St. Croix, V. I., for appellant.
Frederick G. Watts, Asst. U. S. Atty., St. Thomas, V. I., for appellee.
Before SEITZ, Chief Judge, and AL-DISERT and GIBBONS, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
This appeal from a judgment of conviction of bank robbery, in violation of 18 U.S.C. § 2113(a) and § 2113(d), presents evidentiary and jurisdictional questions and challenges the legality of the in-court identifications of appellant upon which the conviction was based.
On April 23, 1970, three armed men entered the Fort Mylner Branch of the Virgin Islands National Bank and, at gun point took $36,255.00. Appellant was arrested and charged with bank robbery in two counts on May 20, 1970. A photographic array was presented to one witness the next day. He could make no positive identification. The same array was shown to a second witness on June 1, 1970, and again no identification was made. On June 25, 1970, a line-up was held by court order. Counsel for appellant was present, and he participated in the selection of the ten persons displayed in the line-up. When the witnesses to the line-up made their identifications and were questioned by the government, however, counsel was excluded. A trial of appellant and two co-defendants resulted in a hung jury. Appellant was retried and the jury returned a verdict of guilty on both counts on December 5, 1970. This appeal followed.
To mitigate the impact of three positive eyewitness identifications at trial, appellant forges a challenge predicated on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and United States v. Zeiler, 427 F.2d 1305, 1307 (3d Cir. 1970), in which this court held that “[t]he considerations that led the court in Wade to guarantee the right of counsel at lineups apply equally to photographic identifications conducted after the defendant is in custody.” For several reasons, however, appellant’s reliance on Zeiler is misplaced.
No testimony was adduced relating to the photographic examinations. Indeed, no photographic identification was made by any witness. Appellant argues that this is of no moment, “because the Wade decision was aimed solely at nullifying any chance for suggestiveness.” But the inability of eyewitnesses to make an identification from the photographic display belies any notion of suggestiveness. Moreover, it is only when a pre-trial identification has been made that concern is generated because “[a] witness once induced by such a suggestive confrontation into making a mistaken identification, is extremely unlikely later to change his mind.” Zeiler, supra, 427 F.2d at 1306-1307. The admission of a photographic identification as substantive evidence of guilt is a sine qua non of a Wade-Zeiler claim. Thus, Zeiler may be distinguished on the very two grounds on which constitutional error was there found: photographic identification in the absence of counsel and testimony to that effect at trial. Zeiler, supra, 427 F.2d at 1307. In any event, the trial court expressly found that “on examination of the 18 photographs I find no such suggestiveness as the record in Zeiler indicates.”
Similarly, the court-ordered line-up was expressly found by the district court to be devoid of any suggestiveness. Nonetheless, the court excluded any evi-dentiary reference to the line-up. Out of exceptional caution, Judge Christian ruled that despite the absence of suggestiveness and the presence of counsel both at the time of participant selection and during the line-up itself, the failure by the government to permit counsel’s presence when the viewers made their identifications rendered inadmissible all identification testimony based on the line-up. In so doing, Judge Christian noted that no objection to the line-up had been posed, and that his rejection of the preferred identification evidence came from the spirit, rather than the letter, of Wade. See Government of the Virgin Islands v. Callwood, 440 F.2d 1206, 1208 (3d Cir. 1971).
So postured, the government’s proof of identification was thus made subject to the formidable standard enunciated in Wade: the Government must be given “the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” Wade, supra, 388 U.S. at 240, 87 S.Ct. at 1939. Government of the Virgin Islands v. Callwood, supra, 440 F.2d at 1209. This standard, characterized by Judge Christian as a “heavy burden,” was deemed by the trial court, after an exhaustive hearing out of the jury’s presence, to have been met by the government. The finding was based on the court’s evaluation of the potential witnesses’ credibility.
Assuming, without deciding, that the government was properly put to the “clear and convincing evidence” standard in adducing its identification testimony, we must agree with Judge Christian that the in-court identifications of all three witnesses- were free from any possible taint. Thus, while we need intimate no view toward the necessity of 'excluding the line-up identification testimony, we hold that the ineourt identification testimony was properly admitted for the jury’s consideration.
Appellant argues next that the admission of a bag containing $90.00, allegedly found in an area into which the robbers were alleged to have fled, created reversible error. Although the bag and the money were admitted at the outset of the trial, defense counsel objected on the ground of irrelevancy. At the close of trial, the court reversed itself and excluded the money and bag because the prosecution had failed to establish a connection relevant to the robbery. Thus, appellant contends that the display of this evidence before the jury “had a prejudicial effect” because “[t]he jury had, from the time of admittance of this evidence, some four (4) days to ponder and consider this evidence in relation to the crime and the rest of the evidence brought before the court.”
No argument is presented suggesting any way in which appellant was actually prejudiced. Indeed, if the temporary presence of this evidence had any effect on the jury at all, in light of the trial court’s thorough instruction on this point, it may have been to cast the government’s case in an unnecessarily weak light:
It was testified that about $90 worth of U. S. currency was found and it was displayed before you. I have stricken it from the record. It is now no longer a part of the case and you are to disregard it entirely. The same applies to a paper bag that I at one time admitted into evidence. I have now reversed that ruling and it is no longer to be considered by you. I have taken this step because there is not sufficient connection between that $90 and any money shown to have been taken from the bank. There is no connection between that paper bag and any paper bag to which it was testified the alleged bank robbers held in hand. Therefore, you are to disregard those items completely.
Assuming the propriety of the ruling which struck this evidence, we find no error here.
Finally, appellant contends that the Virgin Islands District Court, because it is a legislative, rather than constitutional court, lacked the power under 18 U.S.C. § 2514 to grant immunity to a witness who testified for the government. § 2514 vests such power only in “court[s] of the United States.” Section 22 of the Revised Organic Act of the Virgin Islands (48 U.S.C. § 1612) states that “[t]he District Court of the Virgin Islands shall have the jurisdiction of a district court of the United States in all causes arising under the Constitution, treaties and laws of the United States. . . .” Yet “vesting a territorial court with jurisdiction similar to that vested in the District Courts of the United States does not make it a ‘District Court of the United States.’ ” Mookini v. United States, 303 U.S. 201, 205, 58 S.Ct. 543, 545, 82 L.Ed. 748 (1938). See also, Hendricks v. Alcoa Steamship Co., 206 F.Supp. 693, 696 (E.D.Pa.1962). Thus, a territorial court may be a “court of the United States” for some purposes, but not for others. Compare Talbot v. McCarrey, 218 F.2d 565, 566 (9th Cir. 1955) with International Longshoremen v. Juneau Spruce Corp., 342 U.S. 237, 72 S.Ct. 235, 96 L.Ed. 275 (1952).
Although the district court found the authority conferred by § 2514 to be an implementary power implicit in the jurisdictional mandate of the Revised Organic Act, we find ourselves precluded from resolving this troublesome issue. We are persuaded that appellant does not have standing to challenge the grant of immunity to the witness.
In Bowman v. United States, 350 F.2d 913, 915 (9th Cir. 1965), the court found that in light of the Supreme Court’s decision in Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L. Ed.2d 678 (1964), the trial court had erred in overruling a claim of privilege against self-incrimination asserted by witnesses called by the government to testify against defendant. The court then held:
This, however, does not entitle Bowman to a reversal. It has long been settled that the privilege against self-incrimination is personal to the witness. (Hale v. Henkel, 1906, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; McAlister v. Henkel, 1906, 201 U.S. 90, 26 S.Ct. 385, 50 L.Ed. 671; United States v. Murdock, [284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210]; United States v. White, 1944, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542; Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; Communist Party of United States v. Subversive Activities Control Board, 1961, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625.) Thus, the court concluded:
It makes no difference, we think, that the two witnesses did attempt to assert the privilege and that the court erroneously overruled their claim of privilege. Where the witness is not the party, the party may not claim the privilege nor take advantage of an error of the court in overruling it. On this point the authorities are practically unanimous. (Citations omitted and emphasis supplied.)
Bowman, supra, 350 F.2d at 916.
The challenge to the admission of witness Parson’s testimony on the ground that the court erroneously granted him immunity is on no firmer footing than would be an objection to evidence seized in violation of Parson’s Fourth Amendment rights. See Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969):
We adhere to these cases and to the general rule that Fourth Amendment rights are personal rights which, like some other constitutional rights may not be vicariously asserted. Simmons v. United States, 390 U.S. 377, [88 S. Ct. 967, 19 L.Ed.2d 1247] (1968); Jones v. United States, 362 U.S. 257 [80 S.Ct. 725, 4 L.Ed.2d 697] (1960); Compare Tileston v. Ullman, 318 U.S. 44, 46 [63 S.Ct. 493, 494, 87 L.Ed. 603] (1943).
Constitutional considerations aside, moreover, cogent policy reasons underscore the concept of minimizing challenges to relevant testimony. As Judge
Gibbons noted in In re: Grand Jury Proceedings, 450 F.2d 199, 222-223 (3d Cir. 1971) (dissenting opinion):
[I]t has been recognized for at least three centuries that the public has the right to every person’s testimony. Every witness privilege is seriously in derogation of a general and fundamental duty. United States v. Bryan, 339 U.S. 323, 333, 70 S.Ct. 724, 94 L. Ed. 884 (1950); Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 76 L.Ed. 375 (1932); Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919). . . .
Next, we must keep before us the nature of the American judicial process. It resolves cases and controversies in an adversary setting. It does not have machinery for righting all wrongs which may surface in any given case or controversy. Determination of the rights of third parties inevitably interrupts, delays and confuses the primary litigation. .
. Speaking of the less drastic step of an exclusionary rule to which a party may resort, Justice Frankfurter wrote:
“Any claim for the exclusion of evidence logically relevant in criminal prosecutions is heavily handicapped. It must be justified by an over-riding public policy expressed in the Constitution or the law of the land.” Nar-done v. United States, 308 U.S. 338, 340, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939).
We hold, therefore, that appellant has no standing to contest the propriety of the grant of immunity to a witness who testified against him. United States v. Le Pera, 443 F.2d 810, 812 (9th Cir. 1971); Long v. United States, 360 F.2d 829, 834 (D.C. Cir. 1966); United States ex rel. Berberian v. Cliff, 300 F.Supp. 8, 14 (E.D.Pa. 1969). Cf., Ellis v. United States, 135 U.S.App.D.C. 35, 416 F.2d 791, 799 (1969).
The judgment of conviction will be affirmed.
. The photographic displays in this case took place a few days prior to this court’s decision in Zeiler. Because we perceive no Zeiler issue to be present, however, we need not reach the question of Zeiler’.s retroactivity.
. Wade does not require active participation by defense counsel in the line-up proceedings, although counsel acquiesced in the selection of participants here. See United States v. Ewing. 446 F.2d 60, 61 (9th,Cir. 1971).
. The court held :
In this case the Government’s agents instructed the identifying witnesses that they should write on a pad given them with a pencil the numbers of the persons whom they identified, if indeed they made any positive identification. It appears that at least three of those witnesses diil. The identifying witnesses were then taken by the Government agents to another room where at that time the Government agents had revealed to them whatever, if anything, liad been written on the pads by the identifying witness or witnesses. At the lineup and in the room with the identifying witnesses counsel for the defendants were present. In the room to which the witnesses were taken, when it was for the first time disclosed what persons, if any, they had identified, not only were counsel for the defendants not present, they were expressly barred by the Government agents. This I find to be incompatible with the doctrine that a defendant placed in a line-up is entitled to the presence of counsel throughout.
. This was the same procedure for which we ordered remand in Zeiler, supra, 427 F.2d at 1309, and for which we have recently articulated guidelines. United Slates v. Zeiler, 447 F.2d 993, 995 (3d Cir. 1971) (Zeiler II). Such a hearing, to implement the mandate of Wade, has received the imprimatur of other circuits as well. United States v. Breaux, 450 F.2d 948, 949 (9th Cir. 1971); United States v. Hinkle, 448 F.2d 1157, 1159 (D.C. Cir. 1971); United States v. Morris, 445 F.2d 1233, 1237 (8th Cir. 1971); Kimbrough v. Cox, 444 F.2d 8, 11 (4th Cir. 1971). See also. United States v. Patterson, 447 F.2d 424, 427 (10th Cir. 1971); United States v. Faulkner, 447 F.2d 869, 871 (9th Cir. 1971).
. The court ruled :
The. ruling of Wade requires that in these circumstances the Government must show by clear and convincing proof that any in-court identification will not be the tainted product of the line-up. The phrase clear and convincing proof is far more easily uttered than applied. In the circumstances of this case, this Court has nothing on which it could make such a finding, other than the testimony of the witnesses themselves, and the circumstances of all attempts to have them identify these defendants. The witnesses Quetel, Wells, and Bancroft, all three of whom have testified that they can at this time make in-court identifications, all three of whom made accurate in-court identifications at a previous trial of this case, have stated that their recognition of these defendants will be as it was in the past trial, based solely on their recall of the events that took place in the bank on the 23rd of April 1970. They have, testified to this in a manner that satisfies the Court that they are credible witnesses. There is nothing at all in their testimony or in the circumstances of this case to suggest to this Oourt that an in-court identification by any of these three witnesses would be tainted by any prior act of any Government agent. Accordingly, these witnesses will be permitted to make an in-court identification of these defendants, if they are able to do so.
. At trial, when asked to indicate which of the defendants he had just identified, witness Bancroft responded, “He is the man I identified at the lineup and he is the man that was in the bank.” Appellant urges that this is express evidence of the inability of the witness to establish an independent origin for his identification. But at the hearing prior to Bancroft’s testimony before the jury, the following colloquy took place:
Q. Mr. Bancroft, can you identify one of the bank robbers at this time? I’m not asking you to identify him.
A. Yes, I could.
Q. Tell His Honor what the basis for your identification of that bank robber is.
A. Well, my basis for identifying the person would be his features, his size, his weight, his age, color of his skin.
Q. And your observation of him as of when ?
A. The day of the robbery.
Thus, at the hearing at which the court determined the presence rel non of an independent origin for the identification, there was no doubt that Bancroft’s testimony sprang from his observations at the scene of the robbery. That he noted in his testimony that his identification was the same as that which he made at the time of the lineup in no way detracts from its reliability. Any prior identifications notwithstanding, it is clear from the record that Bancroft’s recognition of appellant stemmed from the time of the robbery. See Government of the Virgin Islands v. Callwood, supra, 440 F.2d at 1209-1210.
. Mookini thus held the Criminal Appeals Rules inapplicable to territorial courts. The Federal Rules of Criminal Procedure expressly apply to the District Court of the Virgin Islands, Rule 54(a), F.R.Cr.P. See also, Government of the Virgin Islands v. Solis, 334 F.2d 517, 519-520 (3d Cir. 1964); 3 Wright, Federal Practice and Procedure § 872.
. Though the Mookini definition of district courts, which excluded territorial courts, has now been largely supplanted by a broader statutory definition, 28 U.S. O. § 451, the Virgin Islands District Court remains without the statute : “The term ‘court of the United States’ includes . . . any court created by Act of Congress the judges of which are entitled to hold office during good behavior.” (Emphasis supplied.) Judges of the Virgin Islands District Court serve eight-year terms. 48 U.S.C. § 1614(a). Thus, although we have held the Jencks Act, Government of the Virgin Islands v. Lowell, 378 F.2d 799, 805 (3d Cir. 1967), and the Bail Reform Act, Government of the Virgin Islands v. Ortiz, 427 F.2d 1043, 1046 (3d Cir. 1970), applicable to prosecutions in the Virgin Islands, while denying applicability of the constitutional right to a grand jury indictment before trial on a capital or infamous crime, Rivera v. Government of the Virgin Islands, 375 F. 2d 988, 990 (3d Cir. 1967), statutory powers granted to “court[s] of the United States” are not automatically applicable to the Virgin Islands. See also, Ottley v. DeJongh, 149 F.Supp. 75, 77 (D.V.I. 1957).
. The Court in Alderman continued:
There is no necessity to exclude evidence against one defendant in order to protect the rights of another. No rights of the victim of an illegal search are at stake when evidence is offered against some other party. The victim can and very probably will object for himself when, as and if it becomes important for him to do so.
Alderman, supra, 394 U.S. at 174, 89 S.Ct. at 967.
Question: Did the court refuse to decide the appeal because the appellant failed to comply with some rule relating to timeliness of the appeal?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_usc2sect
|
1251
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 8. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Macaria Navarro de HERNANDEZ, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
No. 72-2494.
United States Court of Appeals, Ninth Circuit.
June 11, 1974.
John F. Sheffield (argued), Norman B. Silver, Esq., Los Angeles, Cal., for petitioner.
Dzintra I. Janavs, Asst. U. S. Atty. (argued), Frederick M. Brosio, Jr., Asst. Atty. Gen., Crim. Div., U. S. Dept, of Justice, Washington, D. C., Joseph Surreck, Regional Counsel, I&NS, San Pedro, Cal., Bernard Hornbach, I&NS, San Francisco, Cal., District Director, I&NS, Los Angeles, Cal., for respondent.
Before TRASK and SNEED, Circuit Judges, and POWELL, District Judge.
Honorable Charles L. Powell, United States District Judge from the Eastern District of Washington, sitting by designation.
PER CURIAM:
Macaría Navarro de Hernandez (Petitioner) appeals from a decision of the Board of Immigration Appeals which upheld the Immigration & Naturalization Service order for her deportation. This court has appellate jurisdiction pursuant to 8 U.S.C. § 1105a.
The petitioner, a citizen of Mexico, was admitted to the United States on a permanent resident visa on April 26, 1967. Pursuant to 8 U.S.C. § 1251(a) (1), deportation proceedings were brought against the petitioner in 1970 on the grounds that at the time of her entry she was excludable under 8 U.S.C. § 1182(a) (31), for knowingly and for gain assisting the illegal entry of another alien. Evidence in support of this charge presented at the deportation hearing included: (1) a sworn statement made by the petitioner on August 17, 1965, during detention by United States officials in which the petitioner confessed to having attempted that day to bring two aliens into the United States for $100 compensation; (2) a sworn statement made by the petitioner on April 7, 1970, (shortly before the deportation proceedings were formally begun) which identified the 1965 statement as genuine and affirmed the truthfulness of the statements contained therein; this statement further included the admission that the petitioner was returned to Mexico in 1965 because she had smuggled two men into the country; (3) sworn statements of the two individuals who the petitioner allegedly smuggled into -the United States who identified “Mjs. Navarro” as the smuggler. On the basis of this evidence and the petitioner’s failure to refute or rebut her previous sworn testimony, the Special Inquiry Officer ordered deportation. This order was affirmed by the Board of Immigration Appeals and the petitioner now seeks review.
Petitioner attacks the proceedings on the ground that she was denied her right to cross-examine the persons who had stated that she had smuggled them into the United States from Mexico and also upon the ground that for reasons of fairness and justice the Immigration & Naturalization Service should be es-topped from deporting petitioner.
8 U.S.C. § 1252(b) states that:
“[T]he alien shall have a reasonable opportunity to examine the evidence against him, to present evidence in his own behalf, and to cross-examine witnesses presented by the Government ft
Here, petitioner argues, the affidavits of the two smuggled aliens were improperly admitted into the record of the hearing before the Special Inquiry Officer. These affidavits identified petitioner as the person who undertook for money to smuggle them into the United States on August 16, 1965. Objection was made upon the ground that the statements were hearsay and that the witnesses were not available for cross-examination at this October 1970 hearing. The Special Inquiry Officer admitted the affidavits provisionally upon the condition that the affiants be produced in person for cross-examination. Two adjournments of the hearing were ordered in order to give the Immigration & Naturalization Service an opportunity to produce the witnesses. A record of the unsuccessful search for them was then introduced, and their affidavits were then admitted. At the conclusion of the hearing the Special Inquiry Officer rendered an oral decision granting voluntary departure or deportation to Mexico if voluntary departure was not made.
In Navarrette-Navarrette v. Landon, 223 F.2d 234 (9th Cir. 1955), cert. denied 351 U.S. 911, 76 S.Ct. 700, 100 L.Ed. 1444 (1956), we held:
“An alien, in deportation proceedings, must be afforded due process of law, including a fair hearing. But it is well settled that administrative tribunals, such as here involved, are not bound by the strict rules of evidence which apply in judicial proceedings.”
In that case on facts remarkably similar to those here, written statements of four aliens were admitted without production of the individuals in person. We held that this failure did not render the proceeding unfair where it was shown that their whereabouts were unknown after a search had been made to locate them. Their absence is of even less consequence here where the affidavit of petitioner herself, corroborates the information contained in the affidavits under question.
Finally, the petitioner asserts that the government is estopped from deporting her because it originally granted her permanent resident status. Reliance is upon a number of cases supporting this argument. Since appellant’s briefs have been filed the Supreme Court in United States Immigration & Naturalization Service v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973), has held that except for “affirmative misconduct” on the part of the Government, the United States could not be estopped from denying citizenship under the facts existing there. Id. at 8, 94 S.Ct. 19. We find nothing in the facts here which could distinguish Hibi and hold that estoppel is not applicable.
We have reviewed the administrative record including the Transcript of Hearing and find nothing upon which a reversal could be justified. The decision of the Board of Immigration Appeals is affirmed.
. 8 U.S.C. § 1182(a) (31) provides in pertinent part:
Excludable classes of aliens
“(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission in the United States: . . .
“(31) Any alien who at any time shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.”
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 8? Answer with a number.
Answer:
|
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