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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 "First Amendment".
Francis POTWORA and Imperial News Company, Inc., Plaintiffs-Appellants, v. Michael F. DILLON, Individually and in his capacity as District Attorney of Erie County, Buffalo, New York, Frank Felicetta, Individually and in his capacity as Commissioner of Police of the City of Buffalo, New York, Louis Wenzka, Individually and in his capacity as Chief of Police, Village of Depew Police Department, Frank Spano, Individually and in his capacity as Head of the Salacious Literature Squad of the Buffalo Police Department, and John Maccarone, Individually and as a Member of the Depew Police Department, Defendants-Respondents.
No. 164, Docket 31748.
United States Court of Appeals Second Circuit.
Argued Oct. 27, 1967.
Decided Nov. 15, 1967.
Harold Price Fahringer, Lipsitz, Green, Fahringer, Roll, Schuler & James, Buffalo, N. Y., for plaintiffs-appellants.
Arthur G. Baumeister, Asst. Dist. Atty., Erie County, Buffalo, N. Y. (William E. Carey, Asst. Dist. Atty., of counsel on the brief), for appellee Michael F. Dillon.
Before FRIENDLY, KAUFMAN and ANDERSON, Circuit Judges.
FRIENDLY, Circuit Judge:
This appeal is from an order of the District Court for the Western District of New York denying a mandatory injunction for the return of a quantity of books alleged to have been illegally seized. It comes to us upon a record consisting only of the complaint, an order to show cause, an answer of two defendants, and a brief opinion.
The plaintiffs are Francis Potwora, who is the subject of a criminal charge for selling obscene books under N. Y. Penal Law, McKinney’s Consol.Laws, c. 40, § 1141, subd. 1 before the village justice of the Village of Depew, and Imperial News Co. The complaint was filed under the Civil Rights Act, 42 U.S.C. § 1983, against the district attorney for Erie County, New York, and officers and members of the police department of the City of Buffalo and the Village of Depew. It alleged that on August 28, 1967, some fifteen police officers entered the premises of Imperial in the Village of Depew and seized approximately 7000 allegedly obscene books. These included ten titles — Pleasures & Follies of a Good Natured Libertine, Sex Life of a Cop, Adam and Eve, Business as Usual, Autobiography of a Flea, The Debauched Hospodar, Dark Hunger, Memoirs of a Young Rakehill, The Gilded Lily, and Flossie. The officers were armed with a search warrant issued ex parte by a county judge which mentioned the first six titles but not the last four. Plaintiffs’ counsel protested to no avail against the seizure of copies beyond the small number that would be needed for a prosecution. None of the books have been restored except for the 177 copies of Sex Life of a Cop, which the “cops” returned when counsel called their attention to Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309 (1967), summarily reversing a decision holding the book obscene under 18 U.S.C. §§ 1461-62; United States v. West Coast News Co., 357 F.2d 855 (6 Cir. 1966).
The only immediate relief sought was the return of the publications seized except five copies of each; the complaint did not allege that defendants were threatening further seizures and no request was made for a temporary injunction against their making them. Noting that state criminal proceedings were pending and that “there is presently no reason to believe that prompt application for relief to the state courts will not provide an adequate forum for determining plaintiffs’ claims,” Judge Henderson, on September 12, 1967, in the exercise of discretion, denied plaintiffs’ application for an order directing return of such of the books as were not needed for the criminal trial. In light of plaintiffs’ representation that the order deprived them of important First Amendment rights, we heard the appeal on an expedited basis ; meanwhile, at Potwora’s request, his trial before the Village Justice was adjourned.
At the argument before us the district attorney for Erie County made no effort to defend the legality of the large scale seizure without an adversary hearing— wisely so in view of Marcus v. Search Warrant, etc., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), and Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); cf. People v. Rothenberg, 20 N. Y.2d 35, 281 N.Y.S.2d 316, 228 N.E.2d 379 (1967). His position was rather that plaintiffs had a number of avenues of relief available in the state courts. The most promising was to move under § 813-c of the New York Code of Criminal Procedure which we quote in the margin; another was to proceed promptly to trial on the criminal charge. Plaintiffs did not here attempt to explain their failure to seek relief from the New York courts save by stressing that they did not seek to enjoin the state criminal proceeding, expressing a preference for “federal justice,” and relying on a statement in Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), that “the federal remedy” under 42 U.S.C. § 1983, “is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.”
An appeal in which state officials persist in holding allegedly obscene books in defiance of applicable rulings of the Supreme Court but their distributor offers no better reason for federal injunctive relief than his preference for a federal forum does not greatly warm the cockles of the judicial heart. Nevertheless the case sharply poses the issue how far in an action under 42 U.S.C. § 1983 a federal court should consider the adequacy of the remedies provided by the state when deciding whether to grant equitable relief.
Plaintiffs’ blanket position as to the irrelevancy of state remedies goes considerably beyond the authorities cited to support it. While the Marcus and Quantity of Books decisions demonstrate the invalidity of the seizure, these cases came to the Supreme Court from state courts and did not, and in the nature of things could not, deal with the propriety of federal injunctive relief. The quotation from Monroe v. Pape states the rationale of that decision incompletely. The Court’s opinion carefully delineates the “three main aims” that § 1983 sought to serve. Id. at 173-174, 81 S.Ct. 473, 477, 5 L.Ed.2d 492. First, the statute overrode invidious state law; second, it provided a federal remedy where the state’s was inadequate on its face; “the third aim was to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice.” The language upon which the plaintiffs rely as it thus appears in context, id. at 183, 81 S.Ct. at 482:
It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.
simply emphasizes that the federal court must be certain that a remedy that seems “adequate in theory” will be “available in practice”; it is not enough that the state statute will be adequate “if enforced.” Monroe v. Pape was an action for damages and the quoted statement must be read in that light; the Court surely had no intention to abrogate in civil rights cases the historic rule, embodied long ago in § 16 of the First Judiciary Act, 1 Stat. 82 (1789), and later in Rev.Stat. § 723 and 28 U.S.C. § 384 (1940 ed.) that suits in equity shall not be sustained in courts of the United States “in any case where a plain, adequate and complete remedy may be had at law.” See Matthews v.Rodgers, 284 U.S. 521, 525, 52 S.Ct. 217, 76 L.Ed. 447 (1932). Mc-Neese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), further explicates the principles with respect to state remedies announced in Monroe. In denying a prayer for equitable relief including registration of negro students in racially integrated schools pursuant to an approved plan, the District Court, although recognizing that the state administrative remedies were cumbersome and inadequate, had “dismissed” the complaint, saying that “until at least an honest attempt is made to pursue that remedy, this Court should not interfere with the state authorities and deprive them of the opportunity to put their own house in order.” 199 F.Supp. 403, 407 (E.D.111.1961). While the Supreme Court'reversed, it emphasized that the state administrative remedy was cumbersome and inadequate and did not suggest that a federal court cannot consult the traditional principles of equity, as informed by the standards announced in Monroe, when deciding whether or not to grant an injunction. Matthews v.
Turning to cases where injunctions have issued to protect First Amendment rights, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), held that defending a state criminal prosecution was not, on the facts of that case, an adequate means of vindicating plaintiffs’ First Amendment rights, see fn. 4, and that consequently the District Court had erred in deciding there was no showing of “irreparable injury” sufficient to merit equitable intervention. The fact that the decision was stated in terms of “the traditional doctrines of equity,” id. at 490, at 85 S.Ct. 1123, demonstrates that the Court sought to control equitable discretion, not to abolish it. The order for the return of documents in that case, 380 U.S. at 497, at 85 S.Ct. 1127, was part of a broader injunction; apparently also it was not urged that Louisiana law afforded adequate relief on that score and examination of the Louisiana statutes, Code of Criminal Procedure §§ 42, 48, would indicate that they do not. The order in In re Louisiana News Co., 187 F.Supp. 241, 245 (E.D.La.1960), for the return of seized magazines was also part of a broader injunction restraining future violations of plaintiffs’ First Amendment rights and, as just stated, there appears to have been no state remedy other than the there inadequate one of defending the criminal prosecution. Evergreen Review, Inc. v. Cahn, 230 F. Supp. 498, 504-505 (E.D.N.Y.1964), is more helpful to plaintiffs since, as examination of the briefs shows, defendant argued the availability of § 813-c of the New York Code of Criminal Procedure as a basis for denying federal equitable relief. However, the opinion does not discuss the point and the order for return of the magazines was part of an injunction covering future interference. We should therefore not consider ourselves required to reverse the order denying plaintiffs’ motion if we were convinced that § 813-c of the New York Code of Criminal Procedure as enforced afforded a “plain, adequate and complete remedy.”
This, however, is where appellees’ argument fails. The difficulty stems from the fact that even if the motion to suppress should be granted, § 813-c provides that the property shall be restored only if it is not “otherwise subject to lawful detention,” cf. F.R.Cr.P. 41(e), but is silent as to how, when and by whom this issue is to be determined. While the section has been little construed in this respect in reported cases, such decisions as we have found convey the impression that a successful movant may still be a long way from getting his property back. Application of Pinta, 36 Misc.2d 386, 232 N.Y. S.2d 336 (Sup.Ct. Bronx County 1962), concerned $2606 in cash unlawfully seized by the police in a gambling raid. Not only had Pinta already won a § 813-c motion to suppress but the criminal charge against him had been dismissed for want of evidence and the Bronx District Attorney had issued a release to the police property clerk stating in substance that the prosecutor had no further need for the money. However, the property clerk refused to hand the money over to Pinta, the magistrate who had granted the § 813-c motion declined to order the clerk to do so because he was not sure that Pinta was the “proper and legal owner” though apparently no one had appeared to make a competing claim, and the Special Term sustained him. Still more apposite is Stengel v. Smith, 37 Misc.2d 947, 236 N.Y.S.2d 569 (Sup.Ct.Erie County), rev’d, 18 A.D.2d 458, 240 N.Y. S.2d 200 (App.Div. 4th Dep’t 1963), where the Supreme Court’s opinion, 236 N.Y.S.2d at 571, recounts the following: On December 5, 1962, police seized 79 cartons of books, magazines and pictures from defendant’s book store. After criminal charges were preferred, a magistrate granted Smith’s motion under § 813-c to suppress the great majority of the publications that had been confiscated. Apparently, however, they were not returned, and Smith had to petition the District Court for the Western District of New York for an injunction under 42 U.S.C. § 1983 ordering the Buffalo Police Department to return the material that had been suppressed. While Judge Henderson there directed the police to return the material by January 3, 1963, he granted a stay until January 11 and on January 4, Buffalo’s Corporation Counsel instituted an action under § 22-a of the Code of Criminal Procedure demanding that 300 items be declared obscene. Not until January 8, a month after the seizure, did the Supreme Court judge hearing this complaint order the release of everything that had been suppressed except these items. Meanwhile defendant was deprived of its right to distribute salacious books and the public of its right to read them. If other victims of massive seizures of obscene publications have found orders of suppression under § 813-e to be more efficacious, the state has not brought this to our attention.
Since on the limited record before him the district judge was not warranted in finding state remedies adequate for the prompt protection of plaintiffs’ First Amendment rights, we are constrained to reverse with directions to enter the injunction requested by them. Hillsbor-ough Township, Somerset County, N. J., v. Cromwell, 326 U.S. 620, 625, 66 S.Ct. 445, 90 L.Ed. 358 (1946).
It is so ordered.
. The complaint also named the special agent in charge of the Buffalo office of the FBI as a defendant but plaintiffs’ counsel stipulated in open court that the action should be discontinued as to him.
. Plaintiffs’ brief raises the number to 8024.
. § 813-c. The motion' in general. A person claiming to be aggrieved by an unlawful search and seizure and having reasonable grounds to believe that the property, papers or things, hereinafter referred to as property, claimed to have been unlawfully obtained may be used as evidence against him in a criminal proceeding, may move for the return of such property or for the suppression of its use as evidence. The court shall hear evidence upon any issue of fact necessary to determination of the motion.
If the motion is granted, the property shall be restored unless otherwise subject to lawful detention, and in any event it shall not be admissible in evidence in any criminal proceeding against the moving party.
If the motion is denied, the order denying such may be reviewed on appeal from a judgment of conviction notwithstanding the fact that such judgment of
conviction is predicated upon a plea of guilty.
. The inadequacy of this remedy here is apparent, see Dombrowski v. Pfister, 380 U.S. 479, 486-487, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)apart from doubt as to the feasibility of immediate trial, appellees’ argument necessarily assumes that the village justice would deliver a perfect charge or direction to the jury and, if the former, that the jury would precisely follow his instructions.
. The case does not involve an application of the “abstention” doctrine — a principle devised to allow state courts first to determine issues of state law and often employed in the hope of avoiding constitutional questions by doing so. See Note, Federal Question Abstention: Justice Frankfurter’s Doctrine in an Activist Era, 80 Harv.L.Rev. 604, 605 (1967). All here concerned concede that the mass seizures were unconstitutional.
. While the statute was repealed as obsolete in view of the merger of law and equity, 62 Stat. 992 (1948), the principie remains intact. Cf. Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 382 at n. 26, 27, 69 S.Ct. 606, 93 L.Ed. 741 (1949).
. The court said:
The statute does not empower the magistrate himself to restore the property, nor does it mandate him to direct its restoration by anyone else. It simply declares the obligation of the one possessing the property — in this case the property clerk — to restore it to the person from whom it was unlawfully seized “unless otherwise subject to lawful detention.”
The onus is therefore on the property clerk to ascertain whether or not the property is “subject to lawful detention.” The release by the district attorney is not determinative; all it certifies is that he “has no further need of the property,” and that he has no objection to its delivery to one who proves to the “satisfaction” of the property clerk his right to possession. That the property was taken from petitioner is no proof of his right to its possession; there may be others who claim title.
Question: What is the specific issue in the case within the general category of "First Amendment"?
A. religion, press, commercial
B. speech and other expression
Answer:
|
songer_weightev
|
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 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".
Michael Eugene CANNADY, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections; Attorney General, State of Florida, Respondents-Appellees.
No. 89-3812.
United States Court of Appeals, Eleventh Circuit.
May 16, 1991.
Donald Scott Modesitt, Tallahassee, Fla., for petitioner-appellant.
Cynthia A. Shaw and Edward C. Hill, Asst. Attys. Gen., Tallahassee, Fla., for respondents-appellees.
Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and HENDERSON, Senior Circuit Judge.
DUBINA, Circuit Judge:
The appellant, Michael Eugene Cannady (“Cannady”), is currently serving a life sentence with a mandatory minimum term of imprisonment of 25 years. Cannady was convicted of first degree murder, robbery, and kidnapping in the Circuit Court for Bay County, Florida. He appeals the district court’s judgment denying his petition for writ of habeas corpus in which he raised four grounds for relief: (1) judicial misconduct; (2) prosecutorial misconduct; (8) ineffective assistance of counsel; and (4) illegally obtained confession. For the reasons which follow, we reverse the district court and remand for a grant of the writ.
I. BACKGROUND
Cannady was convicted of the first degree murder of William Carrier, the night auditor at the Ramada Inn in Panama City, Florida (“the victim”). The only substantial evidence against Cannady regarding the murder consisted of incriminating statements he made to Officer Frank McKeithen (“McKeithen”), an investigator with the Bay County Sheriff’s office. Can-nady told McKeithen that he stole some money from the Ramada Inn, kidnapped the victim, drove him to a secluded wooded area and shot him. The jury reached a guilty verdict but recommended a life sentence.
Judge Russell Bower adjudged Cannady guilty of murder in the first degree; however, Judge Bower rejected the jury’s recommendation and sentenced Cannady to death. Cannady filed a timely notice of appeal to the Florida Supreme Court, which affirmed Cannady’s conviction but reduced his court-imposed death penalty sentence to life imprisonment with a mandatory minimum term of incarceration of 25 years. Subsequently, Cannady filed a Rule 3.850 motion in the Circuit Court for Bay County addressing four main issues: (1) judicial misconduct; (2) prosecutorial misconduct; (3) ineffective assistance of counsel; and (4) illegally obtained confession. Judge Bower denied the Rule 3.850 motion, and Cannady appealed to the District Court of Appeal, First District of Florida, which affirmed per curiam. Cannady then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Florida. The United States Magistrate Judge entered a Report and Recommendation recommending that all relief be denied. Cannady filed a timely objection to the magistrate judge’s recommendation which was overruled by the district court. The district court entered judgment in favor of the respondents and against Cannady. It is from that judgment that Cannady appeals.
II. DISCUSSION
The first issue we consider on appeal is whether Cannady’s confession that he killed the victim was illegally obtained. Cannady argues that the confession should not have been admitted into evidence because it was not freely and voluntarily given, and he did not knowingly waive his right to have an attorney present when he made incriminating statements to McKeithen. This court, however, in deciding the ultimate issue of voluntariness of a defendant’s confession, may substitute its independent judgment after a review of the entire record. Sullivan v. Alabama, 666 F.2d 478 (11th Cir.1982).
Cannady became a suspect in the murder while he was incarcerated on other charges. McKeithen read Cannady his Miranda rights and questioned him several times about the murder. At one of the initial interviews, Cannady presented an alibi defense. McKeithen investigated the alibi and discovered its inaccuracy. Then McKeithen confronted Cannady that he had been seen in Panama City on the night before the murder. McKeithen asked Can-nady if he killed the victim, and Cannady, at some point during the interview said, “I think I should call my lawyer.” Continuing the questioning, McKeithen asked Cannady if he wanted “to talk about it,” whereupon Cannady broke down and admitted the killing. After this outburst, McKeithen interrogated Cannady in detail about the murder. Cannady then read and signed a written waiver of rights form and gave a transcribed confession.
There is conflicting testimony in the record by McKeithen as to whether the voluntary admission was made before or after Cannady requested counsel. McKeithen testified at his deposition and at trial that Cannady first stated, “I think I should call my lawyer,” and then he broke down and stated, “I didn’t mean to kill that man ... it wasn’t supposed to happened that way.” At the suppression hearing, McKeithen testified that Cannady first stated, “I didn’t mean to kill that man ... it wasn’t supposed to happen that way,” and then stated he needed to speak to his attorney. Whether the spontaneous statements were made before or after Cannady requested an attorney is immaterial since the statements were not made in response to interrogation. See Miranda, 384 U.S. at 467-479, 86 S.Ct. at 1624-1630.
Cannady’s outburst in which he stated that “he didn’t mean to kill that man” is not due to be suppressed. Voluntary and spontaneous comments by an accused, even after Miranda rights are asserted, are admissible evidence if the comments were not made in response to government questioning. See Lightbourne v. Dugger, 829 F.2d 1012, 1019 (11th Cir.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988); United States v. Suggs, 755 F.2d 1538, 1542 (11th Cir.1985). Cannady’s initial statement was not the product of interrogation. It was spontaneously and voluntarily made by Canna-dy during questioning by McKeithen as to his whereabouts on the night of the murder. At oral argument before this court, Cannady’s counsel alluded to the fact that these statements were voluntarily made.
The statements which followed Cannady’s request for counsel are a different matter. We conclude that all subsequent statements should have been suppressed because they were obtained in violation of Cannady’s fifth amendment right. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court held that the use of the petitioner’s confession against him at trial violated his right under the fifth and fourteenth amendments to have counsel present during custodial interrogation when the petitioner had previously requested an attorney. When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to police-initiated interrogation after being again advised of his rights. Edwards, 451 U.S. at 484-87, 101 S.Ct. at 1884-86. According to Edwards, once an accused requests an attorney, all questioning and interrogation must cease until the attorney is present.
If the request for counsel is equivocal (for example, a request to have both counsel and talk), further inquiries by the police must be limited to clarifying the initial request for counsel. No statement made after the request and before it is clarified may overcome the Miranda bar. Thomas v. Wainwright, 601 F.2d 768, 771 (5th Cir.1979). See also United States v. Pena, 897 F.2d 1075 (11th Cir.1990). Cannady’s statement, “I think I should call my lawyer,” was an unequivocal request for counsel. McKeithen knew Cannady wanted to speak to an attorney because McKeithen pushed the phone toward Cannady and waited for him to make the call. When Cannady did not call an attorney, McKeithen then asked, “would you like to talk about it?” This statement is not a clarifying one. It is a question directly about the murder and any answer elicited from Cannady after this statement is a violation of Cannady’s constitutional rights. See Owens v. Alabama, 849 F.2d 536, 539 (11th Cir.1988). In Owens, this court held that continued questions about a murder violated Miranda rights when the accused had stated that he thought he would let the state appoint him counsel. Here, McKeithen’s question to Cannady was obviously whether Cannady wanted to talk about the crime, not whether Cannady wanted an attorney. McKeithen knew that Cannady wanted an attorney, and he should have procured an attorney for him.
Because we hold that Cannady’s petition for writ of habeas corpus is due to be granted on the basis that his confession was illegally obtained, we need not address the remaining issues presented in this appeal.
In conclusion, we reverse the district court’s denial of Cannady’s petition for writ of habeas corpus and remand this case to the district court with directions to grant the writ and afford the state an opportunity to retry Cannady.
REVERSED AND REMANDED WITH DIRECTIONS.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. At oral argument, Modesitt, counsel for Can-nady, stated: “Well, he [Cannady] said, ‘It wasn't supposed to happen that way ... I didn't mean to kill that man.’ Now, I don’t think this is a confession ... I think it's an incriminating statement, but I’d rather go back to trial with that one than the next two that occurred after that.” Cannady’s counsel at oral argument also stated: "If the Court finds that it was a voluntary statement when the defendant said, ‘I think I ought to talk to a lawyer’ and then he volunteers and says, ‘Well, I didn’t mean to kill that man ... it wasn’t supposed to happen that way.’ If the court finds that to be voluntary and admissible, I may agree that might be appropriate. But the following statements after that were the product of interrogation by the officer; they were [there was] no effort to clarify whether he wanted an attorney or not and there was no need for clarification.... ”
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:
|
sc_caseorigin
|
040
|
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.
NATIONAL MEAT ASSOCIATION v. HARRIS, ATTORNEY GENERAL OF CALIFORNIA, et al.
No. 10-224.
Argued November 9, 2011
Decided January 23, 2012
Steven J. Wells argued the cause for petitioner. With him on the briefs were Heather M. McCann, Timothy J. Droske, and Philip C. Olsson.
Benjamin J. Horwich argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Verrilli, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Hertz, Mark B. Stern, and Thomas M. Walsh.
Susan K. Smith, Deputy Attorney General of California, argued the cause for respondents. With her on the brief for the state respondents were Kamala D. Harris, Attorney General, pro se, Manuel M. Medeiros, State Solicitor General, David S. Chaney, Chief Assistant Attorney General, and Douglas J. Woods, Senior Assistant Attorney General. J Scott Ballenger, Jonathan R. Lovvorn, Bruce A. Wagman, and Leslie Brueckner filed a brief for respondent Humane Society of the United States et al.
Briefs of amici curiae urging reversal were filed for the American Association of Swine Veterinarians et al. by Lance W. Lange; and for the Chamber of Commerce of the United States of America by Kenneth S. Getter, Brian J. Wong, Robin S. Conrad, and Kate Comerford Todd.
Briefs of amici curiae urging affirmance were filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Michael A Scodro, Solicitor General, and Jane Elinor Notz, Deputy Solicitor General, and by the Attorneys General for their respective jurisdictions as follows: John J. Burns of Alaska, Thomas C. Horne of Arizona, Irvin B. Nathan of the District of Columbia, David M. Louie of Hawaii, Gregory F. Zoeller of Indiana, Bill Schuette of Michigan, Catherine Cortez Mosto of Nevada, Eric T Schneiderman of New York, E. Scott Pruitt of Oklahoma, William H. Sorrell of Vermont, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, and Gregory A. Phillips of Wyoming; for the American Society for the Prevention of Cruelty to Animals by Stacy Wolf; for Professors of Preemption Law by Douglas T. Kendall, Elizabeth B. Wydra, and James H. Carter; for Public Citizen et al. by Allison M. Zieve, Scott L. Nelson, Michael Schuster, and Barbara Jones; and for Tim Blackwell et al. by Sheldon Eisenberg.
Justice Kagan
delivered the opinion of the Court.
The Federal Meat Inspection Act (FMIA or Act), 21 U. S. C. § 601 et seq., regulates the inspection, handling, and slaughter of livestock for human consumption. We consider here whether the FMIA expressly preempts a California law dictating what slaughterhouses must do with pigs that cannot walk, known in the trade as nonambulatory pigs. We hold that the FMIA forecloses the challenged applications of the state statute.
I
A
The FMIA regulates a broad range of activities at slaughterhouses to ensure both the safety of meat and the humane handling of animals. First enacted in 1906, after Upton Sinclair’s muckraking novel The Jungle sparked an uproar over conditions in the meatpacking industry, the Act establishes “an elaborate system of inspecting]” live animals and carcasses in order “to prevent the shipment of impure, unwholesome, and unfit meat and meat-food products.” Pittsburgh Melting Co. v. Totten, 248 U. S. 1, 4-5 (1918). And since amended in 1978, see 92 Stat. 1069, the FMIA requires all slaughterhouses to comply with the standards for humane handling and slaughter of animals set out in the Humane Methods of Slaughter Act of 1958 (HMSA), 72 Stat. 862, 7 U. S. C. § 1901 et seq., which originally applied only to slaughterhouses selling meat to the Federal Government.
The Department of Agriculture’s Food Safety and Inspection Service (FSIS) has responsibility for administering the FMIA to promote its dual goals of safe meat and humane slaughter. Over the years, the FSIS has issued extensive regulations to govern the inspection of animals and meat, as well as other aspects of slaughterhouses’ operations and facilities. See 9 CFR §300.1 et seq. (2011). The FSIS employs about 9,000 inspectors, veterinarians, and investigators to implement its inspection regime and enforce its humane-handling requirements. See Hearings on 2012 Appropriations before the Subcommittee on Agriculture of the House Committee on Appropriations, 112th Cong., 1st Sess., pt. IB, p. 921 (2011). In fiscal year 2010, those personnel examined about 147 million head of livestock and carried out more than 126,000 “humane handling verification procedures.” Id., at 942-943.
The FSIS’s inspection procedure begins with an “ante-mortem” examination of each animal brought to a slaughterhouse. See 9 CFR §309.1. If the inspector finds no evidence of disease or injury, he approves the animal for slaughter. If, at the other end of the spectrum, the inspector sees that an animal is dead or dying, comatose, suffering from a high fever, or afflicted with a serious disease or condition, he designates the animal as “U. S. Condemned.” See §309.3; §311.1 et seq. (listing diseases requiring condemnation). A condemned animal (if not already dead) must be killed apart from the slaughtering facilities where food is produced, and no part of its carcass may be sold for human consumption. See § 309.13(a); 21 U. S. C. § 610(c).
The inspector also has an intermediate option: If he determines that an animal has a less severe condition — or merely suspects the animal of having a disease meriting condemnation — he classifies the animal as “U. S. Suspect.” See 9 CFR § 309.2. That category includes all nonambulatory animals not found to require condemnation. See § 309.2(b). Suspect livestock must be “set apart,” specially monitored, and (if not reclassified because of a change in condition) “slaughtered separately from other livestock.” §309.2(n). Following slaughter, an inspector decides at a “post-mortem” examination which parts, if any, of the suspect animal’s carcass may be processed into food for humans. See 9 CFR pts. 310, 311.
The regulations implementing the FMIA additionally prescribe methods for handling animals humanely at all stages of the slaughtering process. Those rules apply from the moment a truck carrying livestock “enters, or is in line to enter,” a slaughterhouse’s premises. Humane Handling and Slaughter of Livestock, FSIS Directive 6900.2, ch. II(I) (rev. Aug. 15, 2011). And they include specific provisions for the humane treatment of animals that cannot walk. See 9 CFR § 313.2(d). Under the regulations, slaughterhouse employees may not drag conscious, nonambulatory animals, see § 313.2(d)(2), and may move them only with “equipment suitable for such purposes,” § 313.2(d)(3). Similarly, employees must place nonambulatory animals, as well as other sick and disabled livestock, in covered pens sufficient to protect the animals from “adverse climatic conditions.” See § 313.2(d)(1); § 313.1(c).
The FMIA contains an express preemption provision, at issue here, addressing state laws on these and similar matters. That provision’s first sentence reads:
“Requirements within the scope of this [Act] with respect to premises, facilities and operations of any establishment at which inspection is provided under... this [Act], which are in addition to, or different than those made under this [Act] may not be imposed by any State.” 21 U.S. C. § 678.
B
In 2008, the Humane Society of the United States released an undercover video showing workers at a slaughterhouse in California dragging, kicking, and electroshocking sick and disabled cows in an effort to move them. The video led the Federal Government to institute the largest beef recall in U. S. history in order to prevent consumption of meat from diseased animals. Of greater relevance here, the video also prompted the California legislature to strengthen a preexisting statute governing the treatment of nonambulatory animals and to apply that statute to slaughterhouses regulated under the FMIA. See National Meat Assn. v. Brown, 599 F. 3d 1093, 1096 (CA9 2010).
As amended, the California law — § 599f of the state penal code — provides in relevant part:
“(a) No slaughterhouse, stockyard, auction, market agency, or dealer shall buy, sell, or receive a nonambula-tory animal.
“(b) No slaughterhouse shall process, butcher, or sell meat or products of nonambulatory animals for human consumption.
“(c) No slaughterhouse shall hold a nonambulatory animal without taking immediate action to humanely euthanize the animal.” Cal. Penal Code Ann. §599f (West 2010).
The maximum penalty for violating any of these prohibitions is one year in jail and a $20,000 fine. See § 599f(h).
Petitioner National Meat Association (NMA) is a trade association representing meatpackers and processors, including operators of swine slaughterhouses. It sued to enjoin the enforcement of § 599f against those slaughterhouses, principally on the ground that the FMIA preempts application of the state law. The District Court granted the NMA’s motion for a preliminary injunction, reasoning that § 599f is expressly preempted because it requires swine “to be handled in a manner other than that prescribed by the FMIA” and its regulations. App. to Pet. for Cert. 36a. But the United States Court of Appeals for the Ninth Circuit vacated the injunction. According to that court, the FMIA does not expressly preempt § 599f because the state law regulates only “the kind of animal that may be slaughtered,” and not the inspection or slaughtering process itself. 599 F. 3d, at 1098.
We granted certiorari, 564 U. S. 1036 (2011), and now reverse.
II
The FMIA’s preemption clause sweeps widely — and in so doing, blocks the applications of § 599f challenged here. The clause prevents a State from imposing any additional or different — even if non-conflicting — requirements that fall within the scope of the Act and concern a slaughterhouse’s facilities or operations. And at every turn §599f imposes additional or different requirements on swine slaughterhouses: It compels them to deal with nonambulatory pigs on their premises in ways that the federal Act and regulations do not. In essence, California’s statute substitutes a new regulatory scheme for the one the FSIS uses. Where under federal law a slaughterhouse may take one course of action in handling a nonambulatory pig, under state law the slaughterhouse must take another.
Consider first what the two statutes tell a slaughterhouse to do when (as not infrequently occurs) a pig becomes injured and thus nonambulatory sometime after delivery to the slaughterhouse. Section 599f(c) prohibits the slaughterhouse from “holding]” such an animal “without taking immediate action to humanely euthanize” it. And §599f(b) provides that no part of the animal’s carcass may be “pro-cessfedj” or “butcher[edj” to make food. By contrast, under the FMIA and its regulations, a slaughterhouse may hold (without euthanizing) any nonambulatory pig that has not been condemned. See supra, at 457. And the slaughterhouse may process or butcher such an animal’s meat for human consumption, subject to an FSIS official’s approval at a post-mortem inspection. See ibid. The State’s proscriptions thus exceed the FMIA’s. To be sure, nothing in the federal Act requires what the state law forbids (or forbids what the state law requires); California is right to note that “[t]he FMIA does not mandate that ‘U. S. Suspect’ [nonambulatory] animals... be placed into the human food production process.” Brief for State Respondents Bl. But that is irrelevant, because the FMIA’s preemption clause covers not just conflicting but also different or additional state requirements. It therefore precludes California’s effort in §§599f(b) and (c) to impose new rules, beyond any the FSIS has chosen to adopt, on what a slaughterhouse must do with a pig that becomes nonambulatory during the production process.
Similarly, consider how the state and federal laws address what a slaughterhouse should do when a pig is nonambula-tory at the time of delivery, usually because of harsh transportation conditions. Section 599f(a) of the California law bars a slaughterhouse from “receiv[ing]” or “buy[ing]” such a pig, thus obligating the slaughterhouse to refuse delivery of the animal. But that directive, too, deviates from any imposed by federal law. A regulation issued under the FMIA specifically authorizes slaughterhouses to buy disabled or diseased animals (including nonambulatory swine), by exempting them from a general prohibition on such purchases. See 9 CFR § 325.20(c). And other regulations contemplate that slaughterhouses will in fact take, rather than refuse, receipt of nonambulatory swine. Recall that the FMIA’s regulations provide for the inspection of all pigs at delivery, see supra, at 456 — in the case of nonambulatory pigs, often right on the truck, see Humane Handling and Slaughter of Livestock, FSIS Directive 6900.2, ch. II(I). They further instruct slaughterhouses to kill and dispose of any nonambulatory pigs labeled “condemned,” and to slaughter separately those marked “suspect.” See supra, at 456-457. In short, federal law establishes rules for handling and slaughtering nonambulatory pigs brought to a slaughterhouse, rather than ordering them returned to sender. So § 599f(a) and the FMIA require different things of a slaughterhouse confronted with a delivery truck containing nonam-bulatory swine. The former says “do not receive or buy them”; the latter does not.
The Humane Society counters that at least § 599f(a)’s ban on buying nonambulatory animals escapes preemption because that provision applies no matter when or where a purchase takes place. The argument proceeds in three steps: (1) Section 599f(a)’s ban covers purchases of nonambulatory pigs made prior to delivery, away from the slaughterhouse itself (say, at a farm or auction); (2) the State may regulate such offsite purchases because they do not involve a slaughterhouse’s “premises, facilities and operations,” which is a condition of preemption under the FMIA; and (3) no different result should obtain just because a slaughterhouse structures its swine purchases to occur at delivery, on its own property. See Brief for Non-State Respondents 43-45.
But this argument fails on two grounds. First, its preliminary steps have no foundation in the record. Until a stray comment at oral argument, see Tr. of Oral Arg. 50, neither the State nor the Humane Society had disputed the NMA’s assertion that slaughterhouses buy pigs at delivery (or still later, upon successful ante-mortem inspection). See Brief for Petitioner 46, n. 18; Brief for Non-State Respondents 44; Brief for State Respondents 16, n. 5. Nor had the parties presented evidence that a significant number of pigs become nonambulatory before shipment, when any offsite purchases would occur. The record therefore does not disclose whether § 599f(a)’s ban on purchase ever applies beyond the slaughterhouse gate, much less how an application of that kind would affect a slaughterhouse’s operations. And because that is so, we have no basis for deciding whether the FMIA would preempt it. Second, even assuming that a State could regulate offsite purchases, the concluding step of the Humane Society’s argument would not follow. The FMIA’s preemption clause expressly focuses on “premises, facilities and operations” — at bottom, the slaughtering and processing of animals at a given location. So the distinction between a slaughterhouse’s site-based activities and its more far-flung commercial dealings is not, as the Humane Society contends, an anomaly that courts should strain to avoid. It is instead a fundamental feature of the FMIA’s preemption clause.
For that reason, the Humane Society’s stronger argument concerns California’s effort to regulate the last stage of a slaughterhouse’s business — the ban in § 599f(b) on “selling] meat or products of nonambulatory animals for human consumption.” The Government acknowledges that the FMIA’s preemption clause does not usually foreclose “state regulation of the commercial sales activities of slaughterhouses.” Brief for United States as Amicus Curiae 17. And the Humane Society asserts, in line with that general rule, that § 599f(b)’s ban on sales does not regulate a slaughterhouse’s “operations” because it kicks in only after they have ended: Once meat from a slaughtered pig has passed a post-mortem inspection, the Act “is not concerned with whether or how it is ever actually sold.” Brief for Non-State Respondents 45. At most, the Humane Society claims, §599f(b)’s ban on sales offers an “incentiv[e]” to a slaughterhouse to take nonambulatory pigs out of the meat production process. Id., at 46. And California may so “motivate[]” an operational choice without running afoul of the FMIA’s preemption provision. Ibid, (quoting Bates v. Dow Agro-sciences LLC, 544 U. S. 431, 443 (2005)).
But this argument mistakes how the prohibition on sales operates within § 599f as a whole. The sales ban is a criminal proscription calculated to help implement and enforce each of the section’s other regulations — its prohibition of receipt and purchase, its bar on butchering and processing, and its mandate of immediate euthanasia. The idea — and the inevitable effect — of the provision is to make sure that slaughterhouses remove nonambulatory pigs from the production process (or keep them out of the process from the beginning) by criminalizing the sale of their meat. That, we think, is something more than an “ineentiv[e]” or “motivat[or]”; the sales ban instead functions as a command to slaughterhouses to structure their operations in the exact way the remainder of §599f mandates. And indeed, if the sales ban were to avoid the FMIA’s preemption clause, then any State could impose any regulation on slaughterhouses just by framing it as a ban on the sale of meat produced in whatever way the State disapproved. That would make a mockery of the FMIA’s preemption provision. Cf Engine Mfrs. Assn. v. South Coast Air Quality Management Dish, 541 U. S. 246, 255 (2004) (stating that it “would make no sense” to allow state regulations to escape preemption because they addressed the purchase, rather than manufacture, of a federally regulated product). Like the rest of §599f, the sales ban regulates how slaughterhouses must deal with nonambula-tory pigs on their premises. The FMIA therefore preempts it for all the same reasons.
III
California’s and the Humane Society’s broadest argument against preemption maintains that all of §599f’s challenged provisions fall outside the “scope” of the FMIA because they exclude a class of animals from the slaughtering process. See 21 U. S. C. § 678 (preempting certain requirements “within the scope of this [Act]”). According to this view, the Act (and the FSIS’s authority under it) extends only to “animals that are going to be turned into meat,” Tr. of Oral Arg. 28 — or to use another phrase, animals that will “be slaughtered... for purposes of human food production,” Brief for State Respondents 19 (emphasis deleted). Section 599f avoids the scope of the Act, respondents claim, by altogether removing nonambulatory pigs from the slaughtering process. The Ninth Circuit accepted this argument, analogizing § 599f to state laws upheld in two other Circuits banning the slaughter of horses for human consumption. 599 F. 3d, at 1098 (discussing Cavel Int’l, Inc. v. Madigan, 500 F. 3d 551 (CA7 2007), and Empacadora de Carnes de Fres-nillo, S. A. de C. V. v. Curry, 476 F. 3d 326 (CA5 2007)). According to the Court of Appeals, “states are free to decide which animals may be turned into meat.” 599 F. 3d, at 1098, 1099.
We think not. The FMIA’s scope includes not only “animals that are going to be turned into meat,” but animals on a slaughterhouse’s premises that will never suffer that fate. The Act’s implementing regulations themselves exclude many classes of animals from the slaughtering process. Swine with hog cholera, for example, are disqualified, see 9 CFR § 309.5(a); so too are swine and other livestock “affected with anthrax,” § 309.7(a). Indeed, the federal regulations prohibit the slaughter of any nonambulatory cattle for human consumption. See § 309.3(e). As these examples demonstrate, one vital function of the Act and its regulations is to ensure that some kinds of livestock delivered to a slaughterhouse’s gates will not be turned into meat. Under federal law, nonambulatory pigs are not among those ex-eluded animals. But that is to say only that § 599f’s requirements differ from those of the FMIA — not that §599f’s requirements fall outside the FMIA’s scope.
Nor are respondents right to suggest that §599f’s exclusion avoids the FMIA’s scope because it is designed to ensure the humane treatment of pigs, rather than the safety of meat. See, e. g., Brief for State Respondents 29; Brief for Non-State Respondents 39-40. That view misunderstands the authority — and indeed responsibility — that the FMIA gives to federal officials. Since 1978, when Congress incorporated the HMSA’s standards, the FMIA has required slaughterhouses to follow prescribed methods of humane handling, so as to minimize animals’ pain and suffering. See 21 U. S. C. §§ 603(b), 610(b); supra, at 456-458. A violation of those standards is a crime, see § 676, and the Secretary of Agriculture can suspend inspections at — and thus effectively shut down — a slaughterhouse that disobeys them, see §§ 603(b), 610(c). To implement the Act’s humane-handling provisions, the FSIS has issued detailed regulations, see 9 CFR pt. 313, including some specifically addressing animals that cannot walk, see §§ 313.2(d), 313.1(c). Those rules, as earlier noted, apply throughout the time an animal is on a slaughterhouse’s premises, from the moment a delivery truck pulls up to the gate. See supra, at 456-458. So the FMIA addresses not just food safety, but humane treatment as well. Even California conceded at oral argument that the FSIS could issue regulations under the FMIA, similar to § 599f, mandating the euthanasia of nonambulatory swine. See Tr. of Oral Arg. 46-47. If that is so — and it is, because of the FSIS’s authority over humane-handling methods — then §599f’s requirements must fall within the FMIA’s scope.
The Circuit decisions upholding state bans on slaughtering horses, on which the Ninth Circuit relied, do not demand any different conclusion. We express no view on those decisions, except to say that the laws sustained there differ from § 599f in a significant respect. A ban on butchering horses for human consumption works at a remove from the sites and activities that the FMIA most directly governs. When such a ban is in effect, no horses will be delivered to, inspected at, or handled by a slaughterhouse, because no horses will be ordered for purchase in the first instance. But § 599f does not and cannot work in that way. As earlier noted, many nonambulatory pigs become disabled either in transit to or after arrival at a slaughterhouse. See supra, at 460-463, and nn. 5-6. So even with § 599f in effect, a swine slaughterhouse will encounter nonambulatory pigs. In that circumstance, § 599f tells the slaughterhouse what to do with those animals. Unlike a horse slaughtering ban, the statute thus reaches into the slaughterhouse’s facilities and affects its daily activities. And in so doing, the California law runs smack into the FMIA’s regulations.
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Answer:
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songer_appel1_1_4
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
WESTMORELAND SPECIALTY CO. v. BURNET, Commissioner of Internal Revenue.
No. 5345.
Court of Appeals of the District of Columbia.
March 14, 1932.
Geo. E. H. Goodner, of Washington, D. C., for appellant.
G. A. Youngquist, Asst. Atty. Gen., and Sewall Key, Wm. Cutler Thompson, C. M. Gharest, and Stanley Suydam, all of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, and GRONER, Associate Justices.
GRONER, Associate Justice.
This is a tax case and involves the question whether petitioner is entitled- to deduct from gross income for the calendar year 3921 the sum of $30,800, representing the par value of 308 shares of its capital stock, which were issued to its president in January, 1922, in accordance with an agreement claimed to,have been made Juno, 1921.
The appropriate statute is 234 (a) of Revenue Aet 1921 (c. 136, 42 Stat. 227, 254). The statute provides: “That in computing the net income * * * there shall be allowed as deductions: (1) All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation Eor personal services actually rendered. * * ¡F »
Article 107 of regulations 62 provides: “Bonuses to employees will constitute allowable deductions from gross income when such payments are made in good faith and as additional compensation for the services actually rendered by the employees, provided such payments, when added to the stipulated salaries, do not exceed a reasonable compensation for the services rendered.”
Petitioner was a Pennsylvania corporation engaged in the manufacture of glass specialties, and had an authorized capital stock of one thousand shares of the par value of $100 each. Until 1922 only 850 shares were issued, and these were divided as follows: George R. West, who was president, 327 shares; Charles II. West, secretary treasurer, 192 shares; Ira F. Brainard, 331 shares. Dissatisfaction arose over the conduct of the business, as a result of which George R. West resigned as president in May, 1921, and Charles H. West was elected Ms successor, and Brainard, who had not hitherto been connected with the corporation in an active way, though at all times a director, was elected secretary treasurer for the balance of the year. As a result of George West’s resignation, the principal responsibility of management fell on his brother, Charles West, and the latter expressed a disinclination to discharge this responsibility on the same basis of compensation as formerly. Brainard, recognizing the necessity of meeting this objection, agréed with Charles West that the corporation would acquire the 327 shares of stock belonging to George West for the sum of $60,000, and that the unissued 150 shares of authorized stock would be issued, and the aggregate of these two blocks of stock divided in such way as to give Charles H. West and Brainard each a half ownership in the stock of the corporation.'
. Charles West, in his testimony, describes the transaction as follows: The substance of the agreement entered into at the time his brother retired from the presidency was that witness - and Mr. Brainard would issue stock so as to equalize the ownership of the company between them, so that from that time on they would be equal partners, so to speak, in the business, although in corporate form.
The plan was consummated by the purchase by the corporation of George West’s shares of stock for $60,000, of which 308 shares were later issued to Charles West and 19 to Brainard, who also received the 150 shares of newly issued stock. Petitioner claims- the right to deduct the par value of the shares transferred to Charles West, in other words, the sum of $30,800, as compensation for services for the year 1921. The Board held against the claim, and we think correctly.
We start, of course, with the presumption that the Commissioner’s determination was correct and that the findings of fact by the Board of Tax Appeals are not the subject of review if based upon substantial evidence. The question then is, Was the payment or transfer of stock made' as compensation for personal services, and were such personal services actually rendered ?
The board determined that the treasury stock was transferred for the purpose of effecting an equal distribution of appellant’s authorized capital between Charles H. West and Brainard, and, inf eren tially at least, that this was done to retain Charles West’s services to the corporation indefinitely and in effect to make him an equal partner in the business. If the Board'» conclusion in this respect is correct, it forecloses the question, for the reason that, if the motive of the payment was as found by the Board, the claim now made is untenable. We have, therefore, been at some pains to examine the evidence. Petitioner’s books show that Charles West, first as secretary treasurer and later as president, received in the year in question salary of $9,000 and a cash bonus of $3,000, and that Brainard, as secretary and treasurer for the last seven months- of the' year, received salary of $5,250 and a cash bonus of $3,000. There is nothing else on the books of the corporation to show ’either by resolution or payment any further compensation to Charles H. West. The $60,000 transaction resulting in the acquisition of the stock, the most of which Charles West received, was recorded in the books of the corporation as a capital transaction. The entries in relation to the purchase of the stock and the proper accounting method to balance the books was the subject of a. correction in the accounts made by an expert called in specifically for that purpose, and there is nothing either in the original entry or in the subsequent correction which- indicates that the purchased and reissued capital stock was in compensation of the officers, or any of them, unless the resolution directing the issuance of the stock to Charles West in consideration of “one dollar and other valuable consideration” may be so called; but when it is considered that at the same meeting Brainard, who admittedly performed no special services, was voted 169 shares, likewise in consideration of $1, and when the evidence of the parties themselves, all of which supports rather than refutes the Board’s theory, is also considered, the conclusion is inevitable that the transaction is precisely as found by the Board, and that the present 'claim is purely an afterthought, which it would be grotesque to adopt.
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Richard M. WOLFF, Petitioner-Appellant, v. UNITED STATES of America, John T. Hadden, and George Rodgers, Respondents-Appellees.
No. 83-1334.
United States Court of Appeals, Tenth Circuit.
June 26, 1984.
Jack Beam, Denver, Colo., for petitioner-appellant.
Raymond P. Moore, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver, Colo., with him on the brief), for respondents-appellees.
Before McWILLIAMS, BREITEN STEIN and SEYMOUR, Circuit Judges.
McWILLIAMS, Circuit Judge.
Richard M. Wolff, an inmate at the Federal Correctional Institute, Englewood, Colorado, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Colorado. By amended petition, Wolff alleged that his conviction for murder, felony murder and robbery at a general court-martial of the United States Military Court, Okinawa, Japan, on April 1, 1977, violated his Fifth Amendment due process rights and his Sixth Amendment confrontational right. Wolff was sentenced to confinement for life at hard labor, forfeiture of all pay and allowances, a fine, reduction of grade and dishonorable discharge. After hearing on the amended petition, the district court denied the petition. Wolff appeals. We affirm.
Before detailing the salient background facts, a review of the various court proceedings will put the entire matter in context. As indicated, Wolff was convicted of premeditated murder, felony murder and robbery at a general court-martial. At the time, Wolff was a Technician First Class (E-6), U.S. Navy, and assigned to duty at naval installations at Okinawa, Japan. He was convicted of robbery and the murder of Ship Serviceman First Class Clark, who was assigned as a cashier at an officers’ club at Okinawa. The conviction was reviewed and affirmed by the United States Navy Court of Military Review. United States v. Wolff, 5 M.J. 923 (N.C.M.R.1978). Thereafter, the United States Court of Military Appeals denied, without comment, Wolff’s petition for review, 6 M.J. 305 (N.C.M.R.1979), and later denied, without comment, Wolff’s untimely petition for reconsideration, 7 M.J. 390 (N.C.M.R.1979).
As stated, Wolff was eventually moved to the Federal Correctional Institute, En-glewood, Colorado. While incarcerated in that institution, Wolff, pro se, has instituted four habeas corpus proceedings in the United States District Court for the District of Colorado. The first three have all been finally resolved adversely to Wolff, and none has bearing on the present proceeding, which is the fourth proceeding. Although the present proceeding was instituted pro se, counsel was appointed to represent Wolff in the district court, and he is represented in this Court by that same counsel.
For general background facts, see United States v. Wolff, 5 M.J. 923 (N.C.M.R.1978). At the general court-martial, an important government witness was a fellow sailor, Donald M. Drake, who was a friend of Wolff’s. Under a promise of immunity, about which more will be said later, Drake testified that several days before the robbery-murder Wolff had told him that he and his wife were going to rob Clark. Drake further testified that shortly after the murder Wolff admitted the murder to him. Drake admitted, however, that on several occasions during the investigatory and preliminary hearing stages, he had made statements, under oath, that were different from, and contrary to, his testimony at trial. He attempted to explain this by stating that during the preliminary stages he was trying to protect Wolff and his wife, and that in his effort to do so he had implicated others in the murder-robbery of Clark. Drake testified, however, that his testimony at trial was the truth of the matter.
As stated, in the present proceeding Wolff, pro se, first alleged that Drake’s testimony at trial was perjured, and that the government knowingly used it. After appointment of counsel, an amended petition was filed, and the thrust of the amended petition was that the facts and circumstances surrounding Drake’s testimony violated Wolff’s due process rights and his confrontational right.
As stated, prior to trial Drake had been offered and accepted immunity in exchange for his testifying against Wolff. The government’s position in this regard is that Drake had been offered transactional immunity. Wolff’s position is that the immunity granted was much broader, in that it granted Drake immunity from perjury prosecution. As we read it, the grant of immunity did not specifically include immunity from perjury; however, it did not specifically exclude immunity from perjury-
immunity from perjury, argues Wolff’s counsel, destroyed the oath given Drake and violated Wolff’s due process and confrontational rights. Regardless of whether Drake was granted only transactional immunity, or something more, it is undisputed that Drake thought he had immunity from perjury charges. Drake so testified during the recross-examination'by defense counsel. However, Wolff’s counsel at the court-martial made no objection to Drake’s testimony.
The failure of Wolff’s counsel to make an appropriate objection at the court-martial may have been a matter of trial strategy. If objection had been made, perhaps the matter would have been cleared up on the scene and. Drake would have been advised as to the exact extent of the immunity granted and the effect, if any, a transactional grant of immunity might have on his testimony. On the other hand, counsel may have thought that by cross-examination he had destroyed Drake’s credibility, and, such being the case, counsel may have decided to allow the court-martial to go on through to conclusion, and not raise the fact of Drake’s belief that he had perjury immunity at that particular time, which tactic at the same time, would conceivably preserve the matter as a possible basis for subsequent collateral relief, should Wolff be convicted. In any event, the question of whether Drake’s mistaken belief that he had perjury immunity violated Wolff’s due process and confrontational rights was never raised in the court-martial, though the underlying facts were fully developed. And therein lies the root of the present controversy, which is whether the fact that the matter raised in this present federal proceeding was not raised at the court-martial bars federal relief. We conclude that it does, relying on the rationale of United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); En-gle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
Counsel would avoid the impact of the above cited cases by observing that Frady involved a collateral attack (§ 2255) on a conviction in the local District of Columbia courts and that Engle and Wainwright involved collateral attacks (§. 2254) on state court convictions, whereas the instant case involves a collateral attack on a court-martial conviction. This admitted difference is not in our view of any great significance. Indeed, “ ‘the range of inquiry in acting upon applications for habeas corpus for persons confined by sentence of military courts is more narrow than in civil cases.’ ” Kennedy v. Commandant, 377 F.2d 339, 342 (10th Cir.1967) (quoting Suttles v. Davis, 215 F.2d 760, cert. denied, 348 U.S. 903, 75 S.Ct. 228, 99 L.Ed. 709 (1954)). The function of civil courts in reviewing a military conviction on a petition for a writ of habeas corpus is to determine whether the military courts gave fair consideration to the petitioner’s constitutional claims. King v. Moseley, 430 F.2d 732 (10th Cir.1970) (citing Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953)).
In the instant case, Wolff’s claim that the immunity given Drake violated his due process and confrontational rights was not presented to the military courts. However, we deem it unnecessary to proceed to examine the merits of Wolff’s constitutional claim because we believe Wolff waived this claim by failing to object to Drake’s testimony at the court-martial. As we understand it, the military courts have adopted the general rule that appellate courts will ordinarily review claimed errors only on the basis of error as presented to the lower courts. See, e.g., United States v. Anderson, 10 M.J. 743, 746 (N.C.M.R.1981) (quoting United States v. Weaver, 1 M.J. 111, 114 n. 1 (C.M.A.1975)); United States v. Dupuis, 10 M.J. 650, 652 (N.C.M.R.1980). This general rule appears to be functionally analogous to a state contemporaneous objection rule. Therefore, we believe the principles of Frady, Engle, and Wainwright apply to the instant case, i.e., the underlying facts were fully known to counsel at the court-martial and his failure to object forfeited Wolff’s claim.
The WainwrightrFrady-Engle line of cases recognizes that if there is good cause for not having advanced the particular matter relied on in the federal collateral habeas corpus proceeding at trial, and there is actual prejudice, then federal relief may be available. In the instant case there is no showing of cause. It could be argued that this is a case of deliberate by-pass. In Angle v. Laird, 429 F.2d 892 (10th Cir.1970), cert. denied, 401 U.S. 918, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971), this Court held that the failure of petitioner’s counsel to make appropriate objections at court-martial in that case was a deliberate by-pass or waiver of his right of confrontation and cross-examination. Be that as it may, certainly in the instant case there is no demonstrated cause for failing to present the matter in the court-martial and thereby obtain an immediate ruling on the objection.
Judgment affirmed.
. Counsel argues here that Drake’s testimony was "the sine qua non of the Navy’s case.” As mentioned in United States v. Wolff, 5 M.J. 923 (N.C.M.R.1978), there was other evidence which, in our view, was highly incriminating: (1) before the murder Wolff was deeply in debt, but after the murder Wolff paid his debts and spent money lavishly; (2) search of Wolffs room resulted in the seizure of a blood-stained shirt belonging to Wolff, and the blood on Wolff’s shirt matched the blood of the deceased; (3) Wolff had been seen with the victim on the day of the killing and was observed alone in the victim’s car later that same day; and (4) ballistic tests showed that the victim had been killed by two shots to the head which came from Wolffs .22 calibre pistol.
. The record indicates Wolffs defense counsel inquired about Drake’s grant of immunity during his recross-examination of Drake, and Drake answered as follows:
Q. Isn’t it a fact, Constructionman DRAKE, that you're testifying today under a grant of immunity from the Convening Authority?
A. Yes, sir. It is.
Q. And what are the terms of that grant of immunity?
A. Defer me of prosecution of anything dealing with the WOLFF case, the robbery or murder.
Q. How about perjury? Are you secure from prosecution for perjury?
A. Yes, sir.
Q. And if they find out iater that you perjured yourself today on the stand can they, under the terms of that agreement, bring charges against you?
A. No, sir.
Q. So you are protected from anything that you might say today; doesn’t matter whether you are telling the truth or whether you are not telling the truth. No one can prosecute you for lying on the stand here today, is that correct?
A. Yes, sir.
Rec. Vol. I at 71.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES ex rel. DANIKAS v. DAY, Commissioner of Immigration, and three other cases.
Circuit Court of Appeals, Second Circuit.
July 20, 1927.
Nos. 240, 384, 385, 387.
1. Aliens <3=54(5) — Warrant for deportation of alien seaman unlawfully remaining in country must issue within three years, rather than five, under statute (Immigration Act 1917, §§ 19, 34 [Comp. St. §§ 4289'AÜ. 4289'/4s]).
Under Immigration Act 1917, § 34 (Comp. St. § 4289%s), providing that any alien seaman landing contrary to provisions of such act shall be deemed to be unlawfully in the United States, “and shall at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody * * * for examination, and if not admitted shall be deported,” warrant for deportation of seaman unlawfully entering must issue within three years, notwithstanding section 19 (section 428914X1), establishing a five-year limitation as to other aliens.
2. Aliens <3=54(5) — Under statute, date when alien is taken Into custody, rather than date of issuance of warrant of arrest, determines whether proceedings were commenced within three-year period of limitation (Immigration Act 1917, § 34 [Comp. St. § 4289'/4s]).
Under Immigration Act 1917, § 34 (Comp. St. § 428914s), providing that alien seaman landing contrary to provisions of such act shall be deemed unlawfully in the United State*, “and shall at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody” for examination, and if not admitted shall be deported, the date on which the alien is taken into custody, and not that on which the warrant of arrest is issued, determines whether proceedings are commenced within three-year period.
3. Appeal and error <3=345(1) — 'Time for appeal does not run until motion for rehearing is disposed of.
Time within which an appeal must be taken does not begin to run until motion for rehearing has been disposed of.
4. Habeas corpus <@=II3(3) — Appeal from order denying roargument in habeas corpus proceeding held improperly taken, and dismissible.
In habeas corpus proceeding on relation of alien held for deportation, appeal by government from order denying motion for reargument held improperly taken, and dismissible.
5. Appeal and error <S=77(I) — Order denying reargument in habeas corpus proceeding is not final and appealable. jn habeas corpus proceeding, order denying reargument is not final and appealable.
Appeals from, the District Court of the United States for the Southern District of New York.
Writs of habeas corpus were granted on the relation of Yasillios Danikas, of Yineenzo Di Giacomo, of George Depastas, and of Mauro Lorusso against Benjamin M. Day, Commissioner. Orders were granted in each ease, sustaining the writ and discharging the relator, and respondent appeals.
Appeal in Danikas Case dismissed, and the orders in the other cases affirmed.
Danikas.
The relator, an alien, is a native and subject of Greece. On January 2, 1922, he arrived at the port of New York as a member of the crew of the steamship Constantinople and deserted his ship. He was not examined by the immigration authorities for permanent admission to the United States at the time of his arrival, nor was he charged to the quota allotted to Greece for the fiscal year ending June 30, 1922. After his desertion he remained in this country, and on October 30, 1924, voluntarily appeared at Ellis Island for inspection at the suggestion of his attorney, and requested that his entry be legalized. On the facts ascertained as to the manner and time of his entry, a warrant of arrest was issued November 13, 1924, but ho was not arrested under the warrant until January 22, 1926. He was charged in the warrant with being liable to deportation under the Immigration Act of May 26, 1924 (Comp. St. §§ 4289%-4289%nn), in that he was not in possession of an unexpired immigration visa, and that he had been found in the United States in violation of the Immigration Act of February 5, 1917, because he was likely to become a public charge at the time of his entry, and had entered at a time or place other than as designated by immigration officials.
On January 22, 1926, the alien was brought before a Board of Special Inquiry for examination, pursuant to section 34 of the Act of February 5, 1917 (Comp. St. § 42891,4s). The board failed to sustain the charge that he was in the United States in violation of the act of 1924, hut a warrant of deportation was issued on the ground that he entered the United States without being admitted and charged to the quota allotted to the country of which he was a native for the fiscal year ended June 30, 1922, and because he entered by water at a place other than as designated by immigration officials and was a person likely to become a public charge at ' the time of his entry.
A writ of habeas corpus was then sued out, whieh was sustained by order of March 31, 1926. The judge who made this order thereafter issued ap order to show cause why the order of March 31st should not be vacated, and the alien should not be allowed to amend his return. This motion was denied by order of June 11, 1926, and the Commissioner of Immigration filed a petition of appeal from the order of June 11.
Di Giacomo.
This relator is a native and subject of Italy. On October 14,1922, he arrived at the port of New York on the steamship Guglielmo Pierce as a member of the crew, and deserted his vessel and remained in the United States. On October 13, 1925, after an investigation that disclosed he was illegally in the country, a warrant of arrest issued on October 14, 1925, on the ground that he was in the country in excess of quota, and had entered at a time and place other than as designated by the immigration officials. As he had gone to Philadelphia he was not taken into custody under the warrant until January 6,1926, after his return. The alien stated that when his ship arrived he went to visit some relatives in Long-Island, became sick, and stayed there about two weeks. On his return he found his ship had gone, looked for another ship, and then looked for work. A warrant of deportation was then issued, after a hearing before a Board of Special Inquiry, because he entered the United States without being admitted and charged to the quota of the country of whieh he was a native for the fiscal year ending June 30, 1923, and because he entered by water at a time or place other than as designated by immigration officials.
A writ of habeas corpus was thereafter sued out, whieh was sustained, and from the order sustaining the writ this appeal has been taken.
Depastas.
This relator is a native and subject of Greece. On January 30, 1922, he arrived at the port of New York on the steamship King Alexander as a member of the crew. Upon arrival he deserted the ship and entered this country, obtained employment, and has remained here ever since. On June 10, 1924, a warrant of arrest was issued, but he was not arrested until November, 1926. He was given a hearing before an immigrant inspector, and ordered deported by warrant dated November 29, 1926, on the ground that the quota for the year ended June 30, 1922, allotted to the country of whieh he was a native, was exhausted.
A writ Of habeas corpus was thereafter sued out which was sustained, from the order sustaining whieh this appeal has been taken.
Lorusso.
This relator arrived in this country on the steamship Presidente Wilson as a member of the crew, on March 14,1923. He was reported as a deserter on March 18, 1923, but the warrant for his arrest did not issue until November 11, 1926, and was apparently not served until December 7, 1926, when he was brought to Ellis Island and given a hearing before an inspector of immigration. He was ordered deported, by warrant dated January 6, 1927, on the ground that he entered the United States without being admitted and charged to the quota allotted to the country of which he was a native, for the fiscal year ended June 30, 1923.
A writ of habeas corpus was thereafter sued out, whieh was sustained, from the order sustaining which this appeal has been taken.
Charles H. Tuttle, U. S. Atty., of New York City (Edward Eeldman, Asst. U. S. Atty., of New York City, of counsel), for appellant.
Charles J. Gerlieh, Jr., of New York City, for appellees Danikas and Depastas.
Harry H. Hoffnagle, of New York City (MeCready Sykes, of New York City, of counsel), for appellee Di Giacomo.
- Isaac Shorr, of New York City (Carol Weiss King, of New York City, of counsel), for appellee Lorusso.
James C. Thomas, of New York City, amicus curias.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge
(after stating the facts as above). The main question discussed in each-of the foregoing eases is whether the warrant of deportation issued too late. Section 34 of the Immigration Act of 1917 provides:
“That any alien seamen who shall land in a port of the United States contrary to the provisions of this act shall be deemed to be unlawfully in the United States, and shall, at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into eustody and brought before a board of special inquiry for examination as to his qualifications for admission to the United States, and if not admitted said alien seaman shall be deported at the expense of the appropriation for this act as provided in section twenty of this act.”
This section, naturally read, would seem to require the Secretary of Labor to arrest a seaman within three years after unlawfully landing in the country, if he sought to deport him; but the government, in spite of the quite unqualified language, contends that the section only determines the admissibility of a seaman, as sections 12-17 (Comp. St. §§ 4289%g-4289%,ii) do of other classes, and that seamen, as well as all other persons, are subject to deportation under section 19 (Comp. St. § 42891/4jj), which contains a live-year statute of limitation for excludable persons, except in the ease of irregular entry, where the time is three years. Certainly this contention is not sound as to causes such as insufficiency of quota, which is an irregularity connected with entry, even if the provisions of section 19 may bo thought to apply to deportation of seamen for offenses subsequent to their arrival.
One of the provisions of section 19 is that “ * * * at any time within three years after entry, any alien who shall have entered the United States by water at any time or place other than as designated by immigration officials, or by land at any place other than'one designated as a port of entry for aliens by the Commissioner General of Immigration, or at any time not designated by immigration officials, or who enters without inspection, shall, upon warrant of the Secretary of Labor, be taken into eustody and deported. * * * ”
The government in its brief says that:
“Section 34 is simply an exception to this provision of section 19. An alien seaman arrested within three years after an unlawful entry may not be deported on that ground. * * • In that respect, and in that respect only, we submit, is the status of an alien seaman in this country different from that of an ordinary alien.”
We can, however, see nothing in section 34 which limits its purpose to giving a hearing to seamen as to their admissibility. Indeed, it is not true, as claimed, that persons, other than seamen, are in all cases denied belated hearings on their qualifications for admission. On April 20, 1926, the Bureau of Immigration promulgated upon the subject of “nunc pro tune examinations” a first amendment to General Order No. 37. That amendment provided for such hearings to determine the status of aliens, when entries were before July, 1921, and between July 1, 1921, and July 1, 1924, where the alien might have been admitted for permanfent residence as exempt from quota.
It must be remembered that it had been held by the Supreme Court in Taylor v. United States, 207 U. S. 120, 23 S. Ct. 53, 52 L. Ed. 130, that deserting seamen did not come within the immigration laws. The provisions of the act of 1917, including section 34 under discussion, wore enacted to bring them within the law, and that was the only act prior to that of 1924 that' dealt with them in terms. Section 34 provides that seamen who land “contrary to the provisions of this act,” not merely those who land without inspection, can be deported within three years, if they cannot establish their qualifications for admission to the satisfaction of a Board of Special Inquiry. Indeed, section 19 provides for only a three-year limitation in respect to entry of any person without inspection, so that section 34 was not needed to cover mere irregular entry by seamen, if they were deportable under section 19.
The view that section 34 alone regulates the deportation of seamen was taken by Judge Learned Hand in United States ex rel. Filippini v. Day, 18 F.(2d) 781, decided in the District Court December 3, 1926. There is strong ground for this, as nothing else dealt with them in terms, and prior to the act of 1917, by reason of the decision in Taylor v. United States, supra, they wore not deport-able. The Circuit Court of Appeals of the Ninth Circuit, in Nagel v. Hansen, 17 F.(2d) 557, seems to have reached the same result. We can in any event see no escape from the conclusion that section 34 regulates the deportation of seamen in all eases relating to improper entry sueh as entry in excess of quota. Moreover, if the strict language of section 19 be considered, it seems unlikely that a seaman can be regarded as a person “who at the time of entry was a member of one or more of the classes excluded by law.” It is his change of status by remaining which makes his presence here unlawful.
Two other questions are said to have been decided erroneously by the court below. The first is that, even if the three-year statute1 of limitation be taken to apply to any of these eases, the proceedings in the Danikas, the Di Giacomo, and the Depastas Cases were all commenced within the three-year period. The date which the government insists is the eritical one is that when the warrant of arrest is issued, and not when the alien is taken into custody.
The other point is raised by the relator Danikas, who contends that the appeal in his case was not timely, and that the order sustaining the writ is not brought up for review.
The proceedings were in each case taken too late. As was said in United States ex rel. Filippini v. Day, supra, “it is now the arrest which counts,” and not the date of issue of the warrant or the time of the actual deportation. In United States ex rel. David v. Tod (C. C. A.) 289 F. 60, and United States ex rel. Patton v. Tod (C. C. A.) 297 F. 385, the proceedings were under sections 19 and 20 of the Immigration Act (Comp. St. §§ 4289%jj, 4289%k), and did not relate to seamen. In each case the arrest was within the statutory limit of five years from the date of entry. It was held that section 20, providing, as it did, “if deportation proceedings are instituted at any time within five years after the date of entry,” was satisfied where the warrant was issued and served within the five years.
Section 34 is much plainer, for it says nothing about the institution of proceedings, but provides that “any alien seaman who shall land in a port of the.United States contrary to the provisions of this act, * * * and shall at any time within three years thereafter, upon the warrant of the Secretary of Labor, be taken into custody, * * * shall be deported.” This, by the plainest language, makes the taking “into custody” within three years from landing the critical factor.
In the Danikas Case the appeal was seasonable, because the time did not begin to run until the motion for a rehearing was disposed of (Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31, 14 S. Ct. 4, 37 L. Ed. 986; Northern Pacific R. R. v. Holmes, 155 U. S. 137, 15 S. Ct. 28, 39 L. Ed. 99), but there was no appeal from the order sustaining the writ, inasmuch as the petition on appeal referred only to the order denying the motion for a reargument. It is fortunate that we find no error in the disposition of the writ, for the appeal as taken does not cover the order sustaining it, and the order denying the motion for a reargument, from which alone the appeal has been taken, is not appealable, because it is not a final order.
The appeal in the Danikas* Case must accordingly be dismissed. The orders sustaining the writs on behalf of Di Giacomo, Depastas, and Lorusso are affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_genresp2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
FLORIDA POWER & LIGHT COMPANY, et al., Petitioners, v. UNITED STATES of America and Nuclear Regulatory Commission, Respondents. WISCONSIN ELECTRIC POWER COMPANY, et al., Petitioners, v. UNITED STATES of America and Nuclear Regulatory Commission, Respondents. ARKANSAS POWER & LIGHT COMPANY, et al., Petitioners, v. UNITED STATES of America and Nuclear Regulatory Commission, Respondents.
Nos. 86-1512, 86-1567 and 86-1571.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 21, 1987.
Decided May 13, 1988.
Harold F. Reis, with whom Thomas A. Schmutz, Washington, D.C., was on the brief for petitioners Florida Power & Light Co., et al. Michael F. Healy and Ernest C. Baynard, Washington, D.C., also entered an appearance, for Florida Power & Light Co.
Jay E. Silberg, Washington, D.C., was on the brief, for petitioners Wisconsin Elec. Power Co., et al.
Joseph B. Knotts, Jr. and Scott M. Du-Boff, Washington, D.C., were on the brief, for petitioners Arkansas Power & Light Co., et al.
Irwin B. Rothschild, III, Deputy Asst. Gen. Counsel, Nuclear Regulatory Com’n with whom William C. Parler, Gen. Counsel, William H. Briggs, Sol., E. Leo Slaggie, Deputy Sol., Nuclear Regulatory Com’n, Peter R. Steenland, Jr., Jacques B. Gelin and Kathleen P. Dewey, Attys., Dept, of Justice, Washington, D.C., were on the brief, for respondents. Dirk D. Snel, Atty. Dept, of Justice, Washington, D.C., also entered an appearance, for respondents.
Michael A. Bauser, Washington, D.C., was on the brief, for amicus curiae The Committee on Nuclear Technology, et al., urging remand.
Before RUTH BADER GINSBURG, STARR and NIES, Circuit Judges.
Of the United States Court of Appeals for the Federal Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a).
Opinion for the court filed by Circuit Judge NIES.
Dissenting opinion filed by Circuit Judge STARR.
NIES, Circuit Judge:
In three consolidated cases, thirty-one nuclear power reactor licensees (petitioners) seek to invalidate a final rule entered on September 16, 1986, by the Nuclear Regulatory Commission (“NRC” or “Commission”), which imposes a uniform “Annual Fee” on those licensees for the fiscal year 1987. “Annual Fee for Power Reactor Operating Licenses and Conforming Amendment,” 51 Fed.Reg. 33,224 (Sept. 18, 1986), corrected at 52 Fed.Reg. 34,082 (Sept. 25, 1986), codified at 10 C.F.R. pt. 171 (1987). The Annual Fee was imposed under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), Pub. L. No. 99-272, 100 Stat. 82 (1986), which became effective on April 7, 1986.
Petitioners argue, first, that the NRC violated the standards contained in COBRA for imposition of a fee. Second, they maintain that if COBRA were interpreted to authorize NRC’s annual flat fee, then the measure would constitute an unconstitutional delegation of Congress’ power to tax. In addition, petitioners assert procedural errors in promulgation of the rule which, they allege, deprived them of a meaningful opportunity to comment on the NRC rule and preclude meaningful appellate review. After reviewing petitioners’ numerous variations on the above arguments, we conclude that no sufficiently persuasive ground has been advanced to warrant judicial invalidation of the subject rule and that the rule lawfully implements COBRA.
I
Before enactment of COBRA, the Commission, like other agencies, has charged user fees for special benefits rendered to identifiable entities under the Independent Offices Appropriation Act of 1952 (“IOAA”), 31 U.S.C. § 9701 (1982) (see 10 C.F.R. pt. 170 (1987)). As established by judicial interpretation, the amount of a fee charged under IOAA is limited to the cost to the agency of a specific benefit rendered to a particular entity. See, e.g., National Cable Television Ass’n, Inc. v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974); Federal Power Comm’n v. New England Power Co., 415 U.S. 345, 94 S.Ct. 1151, 39 L.Ed.2d 383 (1974). Under IOAA, the Commission has imposed fees for services, for example, for review of a license application or for an inspection, but it has never charged for providing general regulatory services (“generic services”), such as research and rule-making. The Commission’s IOAA fee schedule was judicially approved in Mississippi Power & Light Co. v. NRC, 601 F.2d 223 (5th Cir.1979), cert. denied, 444 U.S. 1102, 100 S.Ct. 1066, 62 L.Ed.2d 787 (1980). IOAA is generally applicable to all government agencies.
In 1985, Congress enacted COBRA which contains provisions directing the NRC, inter alia, to recoup up to thirty-three percent of its budget through charges imposed on its licensees. More specifically, section 7601(a) of COBRA, to be codified at 42 U.S.C. § 2213, required the Commission, within ninety days after enactment, to evaluate a system to assess and collect annual fees from the Commission’s licensees which would “fund all or part of the activities conducted by the Commission,” and to provide Congress with a report. Under section 7601(b)(1), the Commission was required, within forty-five days of its report, to impose annual charges on its licensees through rulemaking, subject to three limitations: (1) the aggregate annual fees plus other amounts collected (e.g., under IOAA) “may not exceed” thirty-three percent of the Commission’s fiscal year costs, (2) the annual charges must be “reasonably related to the regulatory service provided by the Commission,” and (3) the charges “shall fairly reflect the cost to the Commission of providing such service.”
Acting within COBRA’s tight deadlines, the Commission timely issued its final “Annual Fee” rule. That rule sets a uniform, annual fee for each power reactor operating licensee (“operating licensee”) by calculating the Commission’s costs budgeted for certain generic services which it concluded were reasonably related to regulating all licensees in that category. The total of those costs are compared with thirty-three percent of the Commission’s budget less fees collected from all licensees under the IOAA. The smaller amount is adopted as the total amount to be recouped. The individual annual charge to each operating licensee is uniform, the total amount to be recouped simply being divided by the number of such licensees. If fees collected under IOAA and COBRA exceed the thirty-three percent ceiling, the rule provides for a refund. A particular licensee can request an exemption under certain circumstances. No COBRA fee is imposed on licensees other than operating licensees, although all licensees continue to pay IOAA fees. The NRC’s methodology resulted in a fee of $950,000 per reactor for 1987. 51 Fed.Reg. at 33,231.
The thirty-one petitioners before us are licensees on whom the new fees have been imposed.
II
Petitioners challenge the Commission’s interpretation of the statute, asserting that the standards of section 7601(b)(1) of COBRA do not authorize a uniform annual fee on operating licensees based on the cost of generic services. That challenge has several facets which we address in turn.
A
Petitioners first argue that, while section 7601(b)(1)(B) states only that the user fees charged “shall be reasonably related to the regulatory service provided by the Commission” without specifying the recipient of the “regulatory service” that Congress had in mind, the paragraph cannot reasonably be interpreted to authorize fees except for regulatory services to an identifiable recipient. Per petitioners, the language of COBRA must be interpreted the same as the courts have interpreted the IOAA and other fee statutes: any fee (in contrast to a tax) must relate to a specific benefit bestowed upon a specific beneficiary. See, e.g., National Cable, 415 U.S. at 340-41, 94 S.Ct. at 1148-49 (fee, unlike tax, is for benefit to applicant “not shared by other members of society”); New England Power, 415 U.S. at 351, 94 S.Ct. at 1155 (charges for regulatory activities of benefit to an entire industry are in the “domain of taxes”). Also, per petitioners, a corollary of this requirement is that fees may not be assessed for activities that do not specifically benefit the feepayer or that serve an independent public interest. See, e.g., Central & S. Motor Freight Tariff Ass’n v. United States, 111 F.2d 722, 729-31 (D.C.Cir.1985); National Ass’n of Broadcasters v. FCC, 554 F.2d 1118, 1128-29 (D.C.Cir.1976) (invalidating FCC fee schedule because independent public interests were represented in all fees).
In this case, petitioners contend, the equal division of the costs of generic services results not only in one licensee, carrying the burden of others who require more general services, but also in the licensees paying for the cost of services which have an independent public benefit. In the absence of an explicit legislative expression of intent to change generally understood limitations on fee collection, petitioners urge that the statute should be interpreted to preclude the NRC from entering into a “constitutionally unchartered area.” Further, petitioners point out that the language of COBRA is sufficiently similar to the provisions of IOAA, except for the explicit direction in IOAA that the fee be based, inter alia, on “the value of the service to the recipient,” that the COBRA fee authorization should be given the same interpretation.
Having considered petitioners’ reasons for urging the application of the IOAA standard, including the constitutional implications in rejection of that standard, we are unpersuaded that Congress intended that COBRA incorporate the same limitations as IOAA. As petitioners acknowledge, noticeably absent from COBRA is the IOAA limitation that the fee reflect “the value of the [agency’s] service to the recipient.” Further, as the Floor Managers of COBRA made clear, the language was not intended to reiterate IOAA standards:
The charges assessed pursuant to this authority shall be reasonably related to the regulatory service provided by the Commission and fairly reflect the cost to the Commission of providing such service. This is intended by the conferees to establish a standard separate and distinct from the Commission’s existing authority under the Independent Offices Appropriations Act of 1952 in order to permit the Commission to more fully recover the costs associated with regulating various categories of Commission licensees.
132 Cong.Rec. H879 (daily ed. March 6, 1986); 132 Cong.Rec. S2725-6 (daily ed. March 14, 1986) [hereafter cited as “Floor Managers’ Report”]. Moreover, if the COBRA and IOAA fee standards were the same, COBRA would have been unnecessary. The conclusion appears inescapable that Congress did not intend the Commission to apply the IOAA standard, or the case law developed under that standard, when assessing fees under COBRA. Instead, Congress intended the Commission to recover costs of providing services which were not recoverable under IOAA. Indeed, Congress estimated that NRC should recover approximately $80,000,000 per fiscal year over and above IOAA collections. 132 Cong.Rec. H879 (daily ed. Mar. 6, 1986); 132 Cong.Rec. S2725 (daily ed. Mar. 14, 1986).
Under this interpretation, NRC may recover generic costs, that is, costs which do not have a specific, identifiable beneficiary. Moreover, we see no requirement that these generic costs must be reduced by a portion artificially allocated to public benefit, so long as the fees charged are “reasonably related” to services provided the feepayers and do not exact payment for an independent public benefit. See Central & S. Motor Freight, 777 F.2d at 729. Unlike IOAA, which if read literally gave virtually unlimited discretion to all government agencies to recoup the entire amount of an agency’s budget “in the public interest,” Congress has provided, by the provisions before us, specific direction to a single agency to recover a limited amount of the costs of generic services. With such direction, we conclude that Congress did not intend to require apportionment of generic services between benefit to the public and benefit to the licensees where, as appears here, the two are interdependent or inextricably intertwined.
B
Other arguments against the NRC’s interpretation of COBRA are narrower in scope. We are urged to hold, for example, that research, a major item in the cost base used to calculate the annual fee, is not a “regulatory service” within the meaning of section 7601(b)(1)(B). The Commission defends the inclusion of that item on the ground that the included research programs are necessary for the Commission to have continuing confidence that licensed reactors can be operated consistent with the public health and safety and the Commission’s regulations. It points to the following statements in NRC’s 1986 Annual Report, which describe the NRC's research effort as follows:
The programs of the Office of Nuclear Regulatory Research (RES) are an essential and integral part of the regulatory process. Safety research supports nuclear regulation by providing defensible technical bases for regulatory action to ensure the protection of public health and safety. NRC research efforts emphasize early identification of potential problems with operating reactors....
4 NRC Ann.Rep. 159 (1987).
Because the fee schedule at issue here is an agency rule based upon the agency’s construction of the statute which it administers, the scope of our review is limited. Chevron U.S.A., Inc. v. Natural Resources Defense Counsel, 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). We must uphold the Commission’s interpretation that the research included in the base is a "regulatory service,” unless it is “arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.” Central & S. Motor Freight, 777 F.2d at 729. In our judgment the Commission’s interpretation passes that test.
Another argument is that the provision in section 7601(b)(1), directing the NRC to “collect annual charges from its licensees,” clearly means from all of its licensees. The Commission imposed the fee only on one category of licensees, power reactor operators. It excluded materials licensees, for example, from the coverage of the rule. That exclusion violated COBRA under the petitioners’ interpretation.
The statute itself is silent on which licensees are to be charged the annual fee. Congress intended, however, to allow the Commission to recover “costs associated with regulating various categories of Commission licensees.” Floor Managers, Report, supra at 5 (emphasis added). Thus, we see nothing in the statute or legislative history which would deprive the Commission of wide discretion in this matter. The explanation for exclusion of groups other than operating licensees was that the Commission devotes a relatively small amount of resources to their regulation and that the large number of materials licensees, for example, would create administrative difficulties were the Commission to calculate an annual fee for them. 51 Fed.Reg. at 24082. We conclude that the Commission’s explanation is not arbitrary and, thus, the Commission did not abuse its discretion by failing to impose the annual fee on all licensees.
Petitioners perceive another misconstruction of the statute in the imposition of a uniform fee on reactor operators, arguing that the words “reasonably related to the services provided” mean “provided to each licensee.” We understand this argument to differ from the principal argument that the IOAA standard applies in that, even if the cost of generic services is included in the base, petitioners maintain, the statute requires apportionment of that cost among the individual licensees. This has been generally presented as a “fairness" argument, i.e., that smaller or less profitable licensees should not be made to shoulder the same burden as larger or more lucrative businesses. We note with strong approval that the Commission is attempting to develop a revised fee schedule which would provide a range of fees. While the NRC might have reasonably adopted a different fee schedule, the record does not indicate that Congress perceived such basic differences between licensees within a category that the statute precludes a uniform fee. We recall in this context the short time Congress afforded the Commission to frame and promulgate a rule.
Turning to paragraph (A) of section 7601(b)(1), petitioners assert error in the Commission’s interpretation of “other amounts collected by the Commission.” Such “other amounts” reduce the total amount of fees that may be collected under COBRA. The Commission did not include interest and late fees collected under 31 U.S.C. § 3717 (1982), payments received from other governmental agencies, or fines and penalties collected from the licensees as “other amounts collected.” The Commission limited the deduction for “other amounts collected” to the fees it collected under the IOAA.
We find the petitioners’ arguments that the additional items are “other amounts collected” unpersuasive. Because the purpose of COBRA was to recover costs incurred by the Commission, the phrase “other amounts collected” can reasonably be interpreted to mean other cost-recovery measures, e.g., the IOAA. Penalties, fines, and interest charges are not cost-recovery measures. Moreover, petitioners’ interpretation would allow utilities that violate the law, and pay consequent penalties or fines, to benefit by recovering a portion of the penalty or fine as a reduced user fee. We do not believe Congress intended such a result.
With respect to payments received from other governmental agencies, we reiterate that COBRA’s purpose was to generate additional federal revenue. If NRC fees were reduced by the amount of reimbursements from other governmental agencies, per petitioners’ interpretation of COBRA, the Commission would not achieve that statutory purpose. It is self-evident that a transfer of funds from one agency to another fails to increase federal revenue.
Ill
Petitioners challenge the validity of the final rule because of alleged violations of the Administrative Procedure Act (APA) § 4, 5 U.S.C. § 553 (1982). The APA requires the Commission to provide notice of its proposed rulemaking adequate to afford “interested parties a reasonable opportunity to participate in the rulemaking process.” Such notice must not only give adequate time for comments, but also must provide sufficient factual detail and rationale for the rule to permit interested parties to comment meaningfully. See, e.g., Connecticut Light & Power Co. v. NRC, 673 F.2d 525, 530-31 (D.C.Cir.), cert. denied, 459 U.S. 835, 103 S.Ct. 79, 74 L.Ed.2d 76 (1982); Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977).
On the latter point, petitioners assert that the NRC cost base statement is merely conclusory and that no explanation is given with respect to the criteria used to include or exclude particular items. They point, for example, to the dollar amount of the cost of reactor-related research in the proposed rule and to the reduction, purportedly without explanation, made in that cost figure in the notice promulgating the final rule.
In the final notice the Commission had explained that between the proposed and final rule it had reviewed the research costs “to ensure that only generic costs associated with all power reactors, with operating licenses, regardless of type, were included in the cost basis.” 51 Fed.Reg. at 33226 (emphasis added). We note also that the lower cost base of the final notice still exceeded thirty-three percent of the NRC budget less IOAA fees, and, thus, the latter figure was used to limit the collectable fees. See 51 Fed.Reg. at 33228. It is essentially irrelevant, therefore, that some costs were removed from the base as long as the remaining costs meet, first, the statutory criteria that they be reasonably related to the regulatory services provided by the NRC and, second, the notice’s criteria that the costs be associated with all operating licensees. Petitioners do not identify any included programs which do not fall into that category. We conclude that the Commission’s explanation was adequate.
Petitioners also argue that the fifteen-day period for comment was too short. On that issue, the Commission notes that Congress gave it only ninety days to report and forty-five more days to enact a final rule. Given Congress’ deadline, the Commission maintains that the fifteen days for comment were reasonable.
We find no evidence that petitioners were harmed by the short comment period. The Commission received sixty-one comments, some of them lengthy, addressing its proposed rule. Those comments had a measurable effect on the final rule. Petitioners have had a substantial period of time since publication of the final rule to consider the rule and the supporting data. No substantive challenges which differ in kind from the original comments have been raised. In this instance, the short length of the comment period appears to be no more than a technical argument, which we do not find meritorious. In sum, we conclude that the Commission's rulemaking process did not violate the APA.
IV
Having upheld the “Annual Fee” rule on all other asserted grounds, we must necessarily reach the issue of the statute’s constitutionality, as interpreted to authorize assessment of fees for generic services. Petitioners argue that, under this construction, the statute constitutes an unconstitutional delegation to the Commission of Congress' power to tax under article I, section 8. If the Commission can require licensees to pay fees for generic, industry-wide services, petitioners argue, then the Commission has in effect been delegated a broad power to levy taxes. In petitioners’ view, such a delegation would be unconstitutional on two grounds: (1) the Constitution does not permit Congress to delegate its taxing power, so that any delegation would be unconstitutional, and (2) the delegation here is unconstitutional, in any event, because it constitutes a transfer of power that is unchecked by intelligible standards. We disagree; even if the NRC assessment were characterized a “tax” rather than a “fee,” this delegation would meet constitutional limitations.
A
The decisions of the Supreme Court in National Cable and New England Power lay the foundation for the analysis of the issue raised by petitioners’ first ground and must be briefly reviewed. Both involved the IOAA. The IOAA authorized each federal agency to prescribe by regulation a fee for the agency’s services,
taking into consideration the direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts_
National Cable, 415 U.S. at 337, 94 S.Ct. at 1147 (quoting the IOAA of 1952, 31 U.S.C. § 483a, as it read before Title 31 was revised in 1982).
The statement of facts in National Cable indicates that the FCC imposed fees upon community antenna television (CATV) systems, pursuant to the IOAA, for the first time in 1970. CATV outlets, while not licensees of the FCC, had been held subject to some regulation by that agency. See United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968). The FCC estimated its direct and indirect costs for CATV regulations and imposed a uniform annual fee to recover that entire amount of its costs from CATV systems, determining that such recovery was “fair and reasonable” and approximated the “value to the recipient” within the meaning of the IOAA.
Focusing on the word “fee” used in IOAA, the majority in National Cable discussed the different connotation of that term, as used in the IOAA, from a “tax.” The opinion contains the following passage, which has led to much debate:
Taxation is a legislative function, and Congress, which is the sole organ for levying taxes, may act arbitrarily and disregard benefits bestowed by the Government on a taxpayer and go solely on ability to pay, based on property or income. A fee, however, is incident to a voluntary act, e.g., a request that a public agency permit an applicant to practice law or medicine or construct a house or run a broadcast station. The public agency performing those services normally may exact a fee for a grant which, presumably, bestows a benefit on the applicant, not shared by other members of society. It would be such a sharp break with our traditions to conclude that Congress had bestowed on a federal agency the taxing power that we read 31 U.S.C. § 483a narrowly as authorizing not a “tax” but a “fee.” A “fee” connotes a “benefit” and the Act by its use of the standard “value to the recipient” carries that connotation. The addition of “public policy or interest served, and other pertinent facts,” if read literally, carries an agency far from its customary orbit and puts it in search of revenue in the manner of an Appropriations Committee of the House.
National Cable, 415 U.S. at 340-41, 94 S.Ct. at 1149 (footnote omitted). In the companion case of New England Power, the Supreme Court further distinguished the IOAA-intended “fee” system from a “tax” system, focusing on the “benefit” to an “identifiable recipient” who “asked for” and “received” services from the agency.
Petitioners argue that in these decisions the Supreme Court prohibited any delegation of the power to tax and held that an agency may impose fees (as delimited therein) only for services to individual beneficiaries and not for services that have a general public benefit. The Court so interpreted the IOAA, per petitioners, to avoid a constitutional problem and, indeed, drew a distinction between “fees” and “taxes” of constitutional dimension. The government maintains that National Cable and New England Power do not fix the constitutional boundary of Congress’ power to give an agency authority to impose charges on entities within its regulatory power by a “metaphysical distinction” between “fees” and “taxes.”
A close reading of those decisions supports the government’s position. The “constitutional problem” actually discussed and avoided by the Court was the delegation of congressional power to agencies without Congress setting standards for their guidance. Specifically, the Court said:
The Court, speaking through Mr. Chief Justice Hughes said in Schechter Corp. v. United States, 295 U.S. 495, 529 [55 S.Ct. 837, 843, 79 L.Ed. 1570]:
“The Constitution 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.’ Art. I, § 1. And the Congress is authorized ‘To make all laws which shall be necessary and proper for carrying into execution’ its general powers. Art. I, § 8, par. 18. The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.”
Congress, of course, does delegate powers to agencies, setting standards to guide their determination. Thus, in Hampton & Co. v. United States, 276 U.S. 394 [48 S.Ct. 348, 72 L.Ed. 624], Congress enacted a flexible tariff law which authorized the imposition of customs duties on articles imported which equaled the difference between the cost of producing them in a foreign country and of selling them here and the cost of producing and selling like or similar articles in the United States. Provision was made for the investigation and determination of these differences by the Tariff Commission which reported to the President who increased or decreased the duty accordingly. The Court in sustaining that system said: “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.” Id., at 409 [48 S.Ct. at 352].
Whether the present Act meets the requirement of Schechter and Hampton is a question we do not reach. But the hurdles revealed in those decisions lead us to read the Act narrowly to avoid constitutional problems.
National Cable, 415 U.S. at 342, 94 S.Ct. at 1149-50.
The majority opinion in National Cable makes no mention of a flat constitutional prohibition against delegation of the tax power. Had there been no dissent, it is unlikely scholars would have launched into the esoteric debate over which powers of Congress can be delegated and which cannot. It is the dissent that interjected the idea that the majority’s discussion of constitutional problems turns on a “metaphysical distinction” between taxes and fees. New England Power, 415 U.S. at 352, 94 S.Ct. at 1155 (Marshall, J., concurring) (incorporated by reference as dissent to National Cable, 415 U.S. at 344, 94 S.Ct. at 1150). While a lower court is not free to depart from a holding of the Supreme Court and will pay close attention even to dicta therein, we know of no principle that requires us to accept the characterization of the majority’s holding put forth in a dissent. In some instances the majority may choose to add comments to answer specifically a mischaracterization of its ruling. See, e.g., Bowen v, Yuckert, — U.S. -, 107 S.Ct. 2287, 2294 n. 6, 96 L.Ed.2d 119 (1987) (“According to the dissent our opinion implies that the Secretary has unlimited authority to deny meritorious claims.... It hardly needs saying that our opinion carries no such implication.”). That choice is, however, simply a matter of judicial style, and a majority’s failure to comment cannot be taken as acceptance of a strawman raised by dissent.
Thus, our obligation here is to interpret and apply the majority opinions in National Cable and New England Power. We read those opinions to hold that the “constitutional problem” mentioned therein was the adequacy of the standards in the delegation. Without the Court’s narrow reading of the IOAA, the standards were constitutionally suspect. That interpretation was found, however, to be mandated by the language of the statute and the legislative history, both indicating that the IOAA authorized fees only for specific benefits to specific licensees. Nothing indicates that the interpretation was dictated by a constitutional prohibition against delegation by Congress of the tax power where adequate standards are set for implementation of congressional intent.
One need only briefly review the Schechter and Hampton decisions, relied upon for the holding in National Cable, to conclude that the Court did not hold in National Cable that the taxing power could not be delegated. The Court in Schechter discussed “limitations of the authority to delegate” and found that a delegation of legislative power, under section 3 of the National Industrial Recovery Act of June 16, 1933, was unconstitutional. Congress had failed to lay down the policies and to establish standards under which such delegation was to be exercised. The Court’s citation to Schechter in National Cable indicates, therefore, that it was discussing delegations in general without differentiating the taxing power from other powers.
The Court’s reliance on Hampton, 276 U.S. at 409, 48 S.Ct. at 352, completely negates the gloss petitioners put on the National Cable decision. Hampton specifically addressed delegation of the tax power. Rather than forbidding such delegation, Hampton explicitly sanctioned such delegation at the specific point of reference:
It is conceded by counsel that Congress may use executive officers in the application and enforcement of a policy declared in law by Congress, and authorize such officers in the application of the Congressional declaration to enforce it by regulation equivalent to law. But it is said, that this never has been permitted to be done where Congress has exercised the power to levy taxes and fix customs duties. The authorities make no such distinction. The same principle that permits Congress to exercise its rate making power in interstate commerce, by declaring the rule which shall prevail in the legislative fixing of rates, and enables it to remit to a rate-making body created in accordance with its provisions the fixing of such rates, justifies a similar provision for the fixing of customs duties on imported merchandise. If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.
Hampton, 276 U.S. at 409, 48 S.Ct. at 352 (emphasis added).
Nothing said in National Cable, or any other Supreme Court case, overrules Hampton explicitly or implicitly. Being bound by Hampton, we decline petitioners’ invitation to join in a debate on the difference between a “fee” and a “tax.” While the difference has merit in other contexts, the difference does not rise to the level of making a delegation of taxing power, per se, unconstitutional. Thus, we reject petitioners’ broad-brush argument and, assuming arguendo that the assessment under review is a “tax,” turn to the question whether Congress has laid “down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform.” Hampton, 276 U.S. at 409, 48 S.Ct. at 352.
B
The standard set out in COBRA establishes a legislative policy that NRC collect up to thirty-three percent of its budget from fees “reasonably related to the regulatory service provided by the Commission” and that the fees “fairly reflect the cost to the Commission of providing such service.” The burden is, of course, on petitioners to show that these standards are unintelligible. See, e.g., Yakus v. United States, 321 U.S.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_casetyp1_1-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
UNITED STATES of America, Appellee, v. Alvaro GALLEGO, Defendant, Appellant.
No. 90-1109.
United States Court of Appeals, First Circuit.
Heard May 7, 1990.
Decided May 9, 1990.
Raymond E. Gillespie, Cambridge, Mass., for defendant, appellant.
Joseph M. Walker, III, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, for the U.S.
Before TORRUELLA, SELYA and CYR, Circuit Judges.
SELYA, Circuit Judge.
This is a single issue sentencing appeal. Defendant-appellant Alvaro Gallego objects to the district court’s fixing of a criminal history category (CHC) and the consequent effect of that choice on the applicable guideline sentencing range.
The facts are these. Shortly before the subject offense was committed, defendant pled guilty in state court to a charge of operating a motor vehicle while under the influence of alcohol, Mass.Gen.L. ch. 90, § 24 (1969 & Supp.1989). He was fined $300 (the DUI fine), payable on or before June 16, 1989. At the time of the subject offense (June 7, 1989), the DUI fine was not yet due and remained unpaid. The district court added two points in computing defendant’s CHC because defendant perpetrated the offense of conviction while under a criminal justice sentence. See U.S. S.G. § 4Al.l(d) (in determining an offender’s CHC, court should “[a]dd points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status”). This increase boosted defendant into Category II and upped the high end of the guideline range to 71 months. The offense of conviction carried a mandatory minimum term of 60 months in prison. See 21 U.S.C. § 841(a)(1). The district court proceeded to impose a sentence of 68 months.
We need not linger long over this appeal. The sentencing guidelines are perfectly clear that a fine is a “criminal justice sentence.” See U.S.S.G. § 4A1.2(a) (defining “prior sentence” to mean “any sentence previously imposed upon adjudication of guilt, whether by guilty plea [or otherwise], for conduct not part of the instant offense”). In this instance, the DUI fine was not payable until a date subsequent to the commission of the offense of conviction. Thus, defendant’s preexisting obligation to the criminal justice system had not been completed when he committed the new offense. The district court therefore applied the guidelines appropriately.
At oral argument, defense counsel conceded that the judge followed the letter of the guidelines. We believe he followed the spirit as well. We also think that the applicable guideline, so construed, is neither impermissible nor constitutionally infirm. See generally United States v. LaGuardia, 902 F.2d 1010, 1015 (1st Cir.1990) (“Congress’ power to control judicial sentencing discretion includes the power to specify the factors a court may consider in setting a sentence.”).
We need go no further. The judgment and sentence must be
Affirmed.
. Sentences (including fines) imposed in respect to certain non-felony offenses are specifically exempted. See, e.g., U.S.S.G. § 4A1.2(c). It is undisputed that the crime underlying the DUI fine does not fall within this, or any other, exempt category.
. The two point increase in this case was not imposed for nonpayment of the DUI fine. Rather, because the fine was not due and payable until June 16, 1989, Gallego was "under a criminal justice sentence” on June 7. Thus, cases such as Bearden v. Georgia, 461 U.S. 660, 672-73, 103 S.Ct. 2064, 2072-73, 76 L.Ed.2d 221 (1983) (probation may not automatically be revoked for failure to pay a fine or make restitution; court must find a willful refusal to pay or failure to make good faith effort to acquire necessary resources), relied on by appellant, are inapposite.
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:
|
sc_respondentstate
|
05
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
ROSE v. ARKANSAS STATE POLICE et al.
No. 85-1388.
Decided November 3, 1986
Per Curiam.
In December 1982, Arkansas State Trooper William Rose was killed in the line of duty. His widow, petitioner in this action, received a $50,000 benefit from the Federal Government pursuant to the Public Safety Officers’ Death Benefits Act, 93 Stat. 1219, 42 U. S. C. § 3796 et seq. The Benefits Act provides for a $50,000 payment to the survivors of a state law enforcement officer who dies as a result of job-related injuries. The federal statute also provides that “[t]he benefit payable under this subchapter shall be in addition to any other benefit that may be due from any other source,” with two exceptions not relevant here. § 3796(e).
Petitioner also applied for death benefits under the Arkansas Workers’ Compensation Act. See Ark. Stat. Ann. § 12-3601 et seq. (1979). Respondent Public Employee Claims Division of the Arkansas Insurance Department acknowledged that the claim was compensable, but insisted on reducing the amount owed to Rose by the amount she had received under the federal Benefits Act. In support of its position, respondent relied on a state statute that provides:
“In the event that any public employee who is entitled to receive workers’ compensation ... as a result of injury, disability or death, and such injuries, disabilities, or death gives rise to an entitlement of benefits under . . . an Act of Congress providing benefits for public safety officers . . . the state workers’ compensation fun[d] shall be entitled to a credit against its liability ... to the extent of the [federal] benefits received . . . .” Ark. Stat. Ann. § 12-3605(G) (Supp. 1985).
Rose filed a complaint with the Arkansas Workers’ Compensation Commission, claiming that her state benefits should not be offset by the federal payment. An Administrative Law Judge ordered respondent to compensate petitioner in full, noting that the Benefits Act plainly states that the federal money is intended to supplement all other benefits. The ALJ ruled that the state statute was in direct conflict with the Benefits Act, and that under the Supremacy Clause of the United States Constitution, the Arkansas provision must give way. The full Commission reversed the ALJ and allowed the offset, finding no inconsistency between the state and federal laws.
The Arkansas Court of Appeals affirmed the Commission’s decision. 16 Ark. App. 96, 697 S. W. 2d 927 (1985). The court first cited Richardson v. Belcher, 404 U. S. 78 (1971), for the proposition that there is nothing inherently unconstitutional about offsetting state and federal benefits. The state court then concluded that the offset in this case was proper, because the Benefits Act does not show a congressional intent to intrude on the States’ right to set workers’ compensation benefits. Therefore, said the court, “[w]e fail to see a supremacy clause argument.” 16 Ark. App., at 99, 697 S. W. 2d, at 928. The Arkansas Supreme Court denied petitioner’s request for review.
There can be no dispute that the Supremacy Clause invalidates all state laws that conflict or interfere with an Act of Congress. Hayfield Northern R. Co. v. Chicago & North Western Transportation Co., 467 U. S. 622, 627, and n. 4 (1984) (citing Gibbons v. Ogden, 9 Wheat. 1, 211 (1824)). In this case, the conflict between the Arkansas law and the Benefits Act is clear from the language of the statutes. The Benefits Act unambiguously provides that the $50,000 payment “shall be in addition to any other benefit that may be due from any other source.” 42 U. S. C. § 3796(e) (emphasis added). Congress plainly intended to give supplemental benefits to the survivors, not to assist the States by subsidizing their benefit programs. The Arkansas statute, however, passed three years after the Benefits Act was enacted, provides that the state award shall be reduced by the full amount of the federal payment. The state statute authorizes the precise conduct that Congress sought to prohibit and consequently is repugnant to the Supremacy Clause.
The state court nevertheless failed to perceive a tension between the two statutes, concluding that the federal law did not alter the States’ traditional right to set the level of workers’ compensation benefits. This reasoning misses the point. The Benefits Act does not require a State to set a particular benefit level for its citizens; it simply prohibits a State from reducing the compensation it otherwise would provide to account for the federal payment. This reading of the Benefits Act is consistent with the legislative history, that shows that Congress was concerned about the inadequacy of death benefits paid to police officers by some States. See H. R. Rep. No. 94-1032, p. 3 (1976); see also 122 Cong. Rec. 12005 (1976) (remarks of Rep. Biaggi). Congress intended that the $50,000 would be a “gratuity,” and would provide payment “over and above all other benefits.” See S. Rep. No. 96-142, p. 58 (1979) (“gratuity”); 122 Cong. Rec. 12002 (remarks of Rep. Eilberg).
The Arkansas court’s reliance on Richardson v. Belcher, supra, is misplaced. In that case the Court upheld a law allowing the reduction of federal benefits to account for state awards of workers’ compensation. See id., at 78-79, and n. 1. Belcher did not present a Supremacy Clause issue.
Because the Benefits Act prohibits States from offsetting their death benefits against the federal payment, § 12-3605(G) of the Ark. Stat. Ann. (Supp. 1985) is invalid. We therefore grant the petition for certiorari, reverse the decision of the Arkansas Court of Appeals, and remand for further proceedings not inconsistent with this opinion.
It is so ordered.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof. . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const., Art. VI, cl. 2.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
BEARD et al. v. UNITED STATES.
No. 6480.
United States Court of Appeals for the District of Columbia.
Argued Dec. 9, 1935.
Decided Feb. 3, 1936.
John J. Sirica, Martin F. O’Donoghue, and Maurice Mclnerney, all of Washington, D. C., for appellants.
Leslie C. Garnett, U. S. Atty., and Roger Robb and John W. Fihelly, Asst. U. S. Attys., all of Washington, D. C.
Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.
GRONER, Associate Justice.
All thirteen appellants were indicted for setting up and keeping a gaming table for the purpose of gaming; and for setting up and keeping a certain place for gaming; and for conspiracy to violate certain sections of the District of Columbia Code (the substantive offenses). All were charged with committing one or more specified overt acts. A joint demurrer and a joint motion to quash were overruled. A bill of particulars was filed, limiting each count of the indictment in point of time to the period January 1 to December 14, 1934, and designating the place as 508 Mather building in Washington, District of Columbia. The bill of particulars further declared that it was purposed to show that the conspiracy contemplated the setting up of gaming tables, etc., at a number of different places in the city of Washington.
At the trial none of appellants testified, and all the evidence offered in their behalf was character evidence as to one of them. The government proved that the rooms in question in the Mather building had been occupied for a number of years by organizations purporting to be engaged in disseminating racing information. The names that from time to time appeared on the door of the suite were Wilson Company, Empire Company, Shepherd Company, Southern News Co., etc. In September, 1934, the name on the door was changed to National Amusement Company. Hutchins, one of appellants, had paid the rent for the suite for “the last eight or ten or twelve months,” He and appellants Beard, O’Callaghan, Smith, Levy, Gallagher, and Meese were frequently seen in and about the building on the floor on which the alleged gambling establishment was maintained.
Preceding June, 1934, the occupant of the suite had subscribed to eleven central office telephone lines and twenty-four private telephone lines; i. e., lines connecting —without central office assistance — the suite with sundry places in Washington city. On June 30, 1934, these telephones were disconnected, and on September 15th Harwood, who was indicted but never arrested, arranged with the telephone company to install sixty central office telephones in the suite. He gave the telephone company a check for $2,210 as a deposit. The check was drawn on a bank account established for that specific purpose.
In September, 1934, Police Officer Little, another officer, and an assistant district attorney went to the suite and endeavored, but unsuccessfully, to gain admission. Then they went to a room adjoining, where, by listening,' they heard voices broadcasting horse race news and taking horse race bets. On October 2, 1934, the police tapped the telephone wires connecting the telephones in the suite. They listened in on October 2, October 3, October 4, and October 5. They heard some person or persons in the suite giving out information concerning horse races and receiving bets on horse races. With each incoming call they heard the person calling identify himself by a number. Seven of the numbers were 4, 7, 10, 18, 22, 27 and 28; and the seven persons calling in placed bets with some person in the suite.
In the afternoon of October 5th the police obtained a warrant from the United States commissioner for the arrest of George Harwood, alias Willie Carroll, and went to the door of the suite and demanded admittance. As no response was made, they broke down the door. On entering they found a large room equipped with a switchboard running on three sides of the room. On the switchboard were approximately twenty-five telephones, most of them ringing, — which were in turn connected to 69 call boxes and about 630 small copper switches. The switches were marked with tabs bearing numbers. In front of each telephone was a “run-down sheet” showing the entries at the various race tracks. At one end of the room was a pigeonhole file cabinet, in which were found several hundred slips recording bets on horse races. In another room were found slips recording bets on races run that day. In the lower right-hand corner of these slips appeared numbers corresponding to those the police had heard over the telephones. The slips were in nine different handwritings. As a matter of fact, slips were found recording each bet which the officers had heard telephoned in during the hours preceding the raid, and these corresponded identically with the stenographic transcript of the telephone conversations recorded by a stenographer who listened in with the police. There was also found other betting paraphernalia and twenty-five loaded dice.
On one of the switchboards there was found a sheet of paper (known to the record as Exhibit 48) containing seventeen telephone numbers and, to the left of each number, a separate and different number. The last-named numbers corresponded with the numbers which the police had heard called in over the telephones from the outside before bets were made; and the telephone numbers, as shown by the telephone company’s records, designated telephones located in places which, as we have seen, were charged by the district attorney as other places in which gambling was carried on in connection with the place raided. For instance, on Exhibit 48, opposite “Number 16” was “Dist. 1808”; and the latter, by reference to the telephone company’s records, was shown to be a telephone located at 514 Tenth Street N. W. No. 16, in turn, was (on the theory of the prosecution) the code or identification number of the place from which the calls originated.
Evidence was introduced showing, as to some six or eight of such places, that they had been raided from time to time during the time period covered by the indictment and were known to the police as gambling places. There was-also evidence that the blank betting slips which were found by the police were delivered to appellant Heck in May, 1934, on his order, pursuant to an original order placed by appellant Beard in 1932.
At the conclusion of the government’s case, appellants each moved for a directed verdict as to each count of the indictment, which was denied. On the trial the jury found all guilty on all counts. There was judgment on the verdict.
There are eighty-two separate assignments of error, but a number are abandoned, and we 'shall discuss only those which were pressed in argument or the brief.
First. Was the indictment defective? It is challenged on the ground that it is vague. It is said that neither of the first two counts gives the location in the District of the gaming table or the place; that there is no reference to the date or dates on which the bets were taken; and that there is no particular allegation that money passed. The criticism of the conspiracy count is that it is not charged there is any relationship between the conspiracy and the overt acts alleged to have been committed in furtherance of its objects, and it is said that it was not proper to combine in one indictment the substantive counts and the conspiracy count.
We think none of these objections well taken.
R.S. § 1025 (18 U.S.C.A. § 556) was enacted for the purpose of preventing miscarriage of justice through the application of technical rules in relation to matters of form in indictments, and it is now universally held that the sufficiency of a criminal pleading is to be determined by practical, rather than technical, considerations. Or, as the Supreme Court said, the rigor of the old common-law rules has yielded in modern practice to the general principle that formal defects not prejudicial will be disregarded. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861. It is ordinarily enough, if the indictment contains the essential elements and ingredients of the offense charged; and this for the purpose of apprising the accused of the nature of the charge and protecting him from a second prosecution.
Here the indictment charged the offense as occurring in the District of Columbia. That was sufficient as to location. Pope v. United States (C.C.A.) 289 F. 312. It charges the maintaining of a gaming table and a place in which gaming was done. The statute in neither case requires proof of the passing of the money. — The indictment is drawn in almost the language of the statute, and charges that both as to place and table defendants were conducting a gaming establishment. That is sufficient. Miller v. United States, 6 App.D.C. 6; Swan v. United States, 54 App.D.C. 100, 295 F. 921. And in an indictment for conspiracy it is sufficient to allege that the overt acts were done to effect the object of the conspiracy. Felder v. United States (C.C.A.) 9 F.(2d) 872. Nor is there anything in the point that the government has chosen to join a conspiracy count with the other counts. All the counts relate to the same acts and transactions, and all depend on substantially the same proof. Chew v. United States (C.C.A.) 9 F.(2d) 348, 353. In such case section 1024, R.S. (18 U.S.C.A. § 557) provides for joining all in one indictment. It was a common practice in indictments under the National Prohibition Act (27 U.S.C.A.) to join charges of possessing whisky, selling whisky, and of conspiracy to manufacture whisky in the same indictment. See Goodfriend v. United States (C.C.A.) 294 F. 148. See, also, Perry v. United States (C.C.A.) 18 F.(2d) 477; Hood v. United States (C.C.A.) 23 F.(2d) 472.
The test is whether the same evidence is necessary to establish both charges, for in those circumstances counts relating to the same transactions or series of transactions may be joined, even though the offenses are not of the same grade. Kelleher v. United States, 59 App.D.C. 107, 35 F.(2d) 877.
We think the indictment sufficient.
Second. We have already said that before battering down the doors the police had obtained a warrant of arrest for one George Harwood, alias Willie Carroll. Harwood was the man who had arranged with the telephone company for the installation of the sixty telephones and had made the $2,210 deposit for this service. When the police entered and made the arrests, they were unable to identify Harwood, and, as it now appears, he was not present. The name, Willie Carroll, which the police thought was an alias of Harwood, was called and, no one present answering to that name, the warrant remained unserved, though it afterwards developed that Carroll was in fact present but that he and Harwood were different persons. No arrest, therefore, was made under the previously issued warrant, and all of appellants subsequently moved to quash it on various grounds; but we do not stop to notice these, for the reason that in our opinion the grounds on which the warrant was issued were sufficient for its issuance. But, even if there be doubt of this, which we think is not the case, we are still of opinion that search and seizure, without the warrant, were lawful and proper. And that, after all, is the real point.
To avoid useless repetition, it is only necessary to repeat at this juncture part of what has been said; namely, that the police had immediately prior to and on the day of the raid heard several hundred bets on horse races being taken. When they got inside the place, bets were still coming in, and several were taken over the telephones by police officers. In these circumstances, we think there was justifiable cause for the arrests. The information the police had was sufficient to put them on notice the place was being used for gaming. This was enough to make the subsequent entrance and arrests lawful. The arrests being lawful, it was equally lawful to search the place and to use the incriminating things found as evidence in the prosecution; for “when a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution.” Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 287, 69 L.Ed. 543, 39 A.L.R. 790; and see, also, Marron v. United States, 275 U.S. 192, 198, 48 S.Ct. 74, 72 L.Ed. 231; where the court said, in a seizure under the National Prohibition Act, the authority of the officers to search and seize the things relating to or constituting the offense extends to all parts of the premises used for the unlawful purpose.
Here the incriminating evidence which the motion sought to exclude was taken from the premises in which the alleged crime was committed at the moment of arrest. In our opinion, the arrests were lawful, and the evidence of crime seized by the police not within the protection of the provision of the Constitution prohibiting search and seizure.
Third. Was the evidence obtained by wire tapping competent? Counsel tell us it was not because, as the police admittedly were not able to identify the voices using the telephones and therefore not able to fasten the conversations on any one of appellants, it was as to all appellants hearsay evidence; and, being hearsay evidence, was inadmissible.
We think this argument overlooks tne purpose for which the evidence was offered and for which clearly it was admissible. The purpose was to show that the Mather place was a gambling place and that it was then being used for gambling. It was competent for this purpose. It was not offered to fasten the conversations on any particular person, but in this connection it is not improper to point out that at the time the officers heard the betting; that is to say, just before the raid, all of appellants were present in the room. The place was being conducted as a gaming place and on an extensive scale. The evidence, therefore, of the character of the place, coupled with appellants’ presence, was a circumstance to be considered by the jury in connection with the charge that they were all conspiring to violate the law; and in this respect the jury had a right to consider the evidence, in connection with all the other evidence in the case, in determining their guilt or innocence.
After listening in (which the Supreme Court has said they may do — Olmstead v. U. S., 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376), the police went immediately from one room in the building to the other in which appellants were found; and, after breaking through several doors, discovered them all in their shirtsleeves in retreat at the far end of the adjoining room. This, also, was a circumstance which the jury could consider together with the things found there tending to show the character of the place and that the law was being violated. The case, therefore, is not one in which evidence of a telephone conversation is introduced against a particular person. In such case it is, of course, necessary to establish the identity; but here the evidence, as we have seen, was offered to show that the place in question was a gambling place and that some or all of the persons found therein were engaged in taking bets in violation of law. For these purposes it was proper.
The trial court told the jury that, in order to convict, it was necessary they should find, as to each individual defendant, that he participated in, or took part in carrying on the unlawful enterprise. This was sufficient to confine the evidence to the particular purposes we have pointed out.
Fourth. Appellants object to the admission of evidence of certain declarations made by one or more of the alleged coconspirators out of the presence of the others. The ground of objection is that, until the existence of the conspiracy is established prima facie, evidence of declarations is inadmissible. One of the statements admitted was that of the appellant Beard, who at the time of the arrest, and when the persons found in the premises were being taken to the police station, said to a police officer, “I have got a- lot of valuable property here, and I want to see what becomes of it and what you do with it.” Another was that Beard several days after the arrests had asked the officer to forget the statement. Another, that appellant Heck, at the police station immediately after the arrest, was asked by one of the officers, “How much does Sam pay you up there a week?” and replied, “Twenty-five Dollars.” It is now insisted, as to all these statements, that they were made after the conspiracy was at an end; and hence were not admissible against the others. Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. But this ground of objection is made for the first time in this court. In the court below the objection was grounded on the theory that -no conspiracy had been proved; and in response to this the court told the jury that no declaration made by one alleged conspirator could be used against another until they were satisfied a conspiracy existed. The objection, therefore, if otherwise valid, would now come too late. But, aside from this, the declarations, except against the persons making them, were of no importance. There is nothing in them which connects any other or others of appellants with the alleged conspiracy.
Fifth. Over the objection of appellants, the government was permitted to introduce evidence of police raids made on gambling places located in different parts of Washington city. It was the theory of the government that each of these branch places was connected by telephone with the gambling room in the Mather building, and that appellants conspired to maintain the places for the purpose of gambling. In support of its contention the government introduced in evidence the sheet of paper to which we previously referred (Exhibit 48), found at the time of the raid. On it were the words and figures we have already made reference to; that is to say, there was a single column containing certain numbers and opposite each the number of a Washington telephone. The government then offered evidence to show the location of the places in Washington in which these telephones were installed; and it also offered evidence to show that the other numbers were the symbols by which persons in the Mather building could identify the place at which the telephone call originated.
The theory was that the Mather building was the central office of a widespread conspiracy to violate the gaming laws, and that there was a tie-up between the main office and a number of branch offices. The telephone conversations which the police overheard, it was claimed, demonstrated that each of the branch offices had a code number known to the alleged conspirators, and that the branch was kept in constant communication with the main office for the purpose of making and recording bets. For example, on October 2d, 1934, an unidentified person in the Mather building telephoned Metropolitan 6056. This telephone was shown to have been located at 702% Fifth Street N. W., Washington. The person answering said, “Hello, this is 22.” (22, the government says, was the code number.) Then followed statements giving information concerning horse races to be run that day. Later in the day Metropolitan 6056 would call the Mather building and, when answered, would say, “This is 22,” and then would follow a number of bets. Precisely this same thing occurred as to all the places as to which evidence of raids was admitted. The police overheard many of these calls, and recorded the subsequent conversations having to do with bets on the races. When they entered the gambling room in the Mather building, they found slips recording bets on races being run that day; and each slip was marked in the lower right-hand corner with a code number corresponding to those which had been given over the telephones, and corresponding likewise to those found on the guide sheet (Exhibit 48) to which we have referred. These slips corresponded with the police memoranda of bets they had listened to on the telephones, and by reference to the guide sheet (Exhibit 48) the place at which the bets originated is determined.
At the bottom of the guide sheet (Exhibit 48) was a number which had been scratched out. As the evidence shows that this number corresponded to a place which had been raided by the police the day before, the fact it had been taken off the list is strong proof of the use to which the paper was put — as well as the time period to which it related. Appellants insist that it was error to admit evidence that these places were gambling places, principally on the ground that no conspiracy had been proved and on the further ground that the evidence did not connect any particular one of the appellants with any of the places.
The evidence admitted shows that the first of the raids occurred in May, 1934. This was at 514 Tenth Street N.W. The code number of this place was 16. The police had testified that they heard bets being made from No. 16 during several hours immediately preceding the raid. In the raid in May the police had found a large gambling establishment in full operation, and the evidence of this the court admitted for the purpose of showing the general character of the place. Similar evidence was admitted as to raids on 1405 L Street N.W., shown on the paper to be code No. 10; and 605 Pennsylvania Avenue N.W., code No. 11; 742% Ninth Street N.W., code No. 27; 722 Thirteenth Street N.W., code No. 19; 1319 Wisconsin Avenue N.W., code No. 12; and 702% Fifth Street N.W., shown as code No. 22. This last-numbered place was raided by the police the day before the raid on the Mather building, and, as we have pointed out, at the time of the latter raid the code No. 22, though written on Exhibit 48, had been scratched off. That this connected up the two places almost to the day of the arrests we think is apparent; and, while none of the evidence directly connected any certain one of the appellants with these branch places, it was introduced and properly admitted in connection with other testimony as tending to throw light upon the charge that persons found in the premises in the Mather building were then and there engaged in gambling as part and parcel of a conspiracy to carry out a general plan of gambling covering fairly well the city of Washington. In this view it was not essential that the degree of participation of each should he shown, for it has been said many times that one, knowing that others have combined to violate the law,, who himself does any act to assist, is as guilty as the others; and his guilt may be shown as well by circumstantial evidence as by direct evidence. All of the branch raids occurred within the period covered by the indictment ; and, if the evidence of the police as to the conversations they later overheard on the telephones is true, all such branch places were still actively engaged in operating when the raid on the Mather building occurred.
This is one of those cases in which of necessity the government was required to rely largely upon circumstantial evidence, and in such a case all relevant circumstances which throw light upon the probability of guilt are admissible. All of appellants were found in a room devoted exclusively to gaming, and the room itself was barred to the public. While appellants were there, gambling was in progress. In the circumstances, evidence tending to show the method and plan of carrying on the business cannot be said to be improper. Allen v. United States (C.C.A.) 4 F.(2d) 688.
Sixth. Exception was taken to a statement of the court to the jury of the reason for their confinement during the trial. The language objected to was as follows: “You understand, of course, by this time in each of these cases which you try here the trial is to be had on the evidence that is produced in open court. In a case like this there is often a lot of public interest, public curiosity about the proceedings and what is going on. There are a large number of defendants here who doubtless have a great many friends who are very much interested in this matter. In a situation of this kind, even without any wrong intention on the part of any body, there is always a liability of information being given to the jury that they ought not take into consideration. Besides that, there are occasions when things happen that become a little embarrassing to the jury; and ofttimes make it necessary for the court to declare a mistrial and have the whole thing gone over. To prevent that possibility of anything' of that sort, and in order to keep the jurors’ minds free of any information that they ought not to have, it seems wise to me in this case to allow you all to remain in the care of the court.”
Objection was made to this statement of the court, and the court replied: “I am sure that I made no stich impression because I said that the public are interested and are curious about these things and these gentlemen who are on trial here have a large number of friends who may also undertake to talk to the jury.”
We do not think this language of the court could have prejudiced appellants. Obviously, what was first said by the court was entirely proper. When objection was made, the judge explained that he had intended no such impression as counsel implied, and added the .language now specially objected to; namely, that the defendants had a large number of friends who might undertake to talk to the jury. This remark might, perhaps, better have been left unsaid; but in our view nothing we have repeated here can be said to have prejudiced appellants.
Nor is there any greater substance to the exception taken to the remarks of government counsel that he was willing to submit the case to the jury without argument.
Seventh. This brings us to the question whether appellants’ motion for a directed verdict should have been granted. We have examined the evidence with great care, and, from what has already been related, it is quite clear that the evidence shows there was conducted in the Mather building a central gambling establishment operated by means of telephone communications with numerous subsidiary gambling places throughout the business section of the city. One of the appellants, Hutchins, paid the rent. Another, Beard, admitted that much of the personal property in the place belonged to him. Another admitted he worked there. A number of others were frequently seen going to and from the place, and all were found in the place under circumstances indicating participation in what was going on.
When the raid occurred, all of appellants were in their shirtsleeves, their coats hanging in an outer room; and, when arrested, none offered any explanation of his presence there. When the officers made the arrests, the telephones were ringing, and bets were being transmitted. Slips showing the taking of bets within an hour or so of the raid, written in nine different handwritings, were found. In these circumstances, and without any testimony in appellants’ behalf to explain their presence in the room, the jury had a perfect right to conclude, as to each of them, that he was engaged in the business then being conducted there.
This is a case like that of men found at midnight at a blockade still in full operation, located in the depths of a swamp. Their presence at the place of the crime may be accidental and innocent, but the inference is that it is not, and calls for explanation ; and, if they offer none and the jury convict, an appellate court would not be justified in saying that the inference -is not sufficient to sustain the conviction. “Conduct which forms a basis for inference is evidence. Silence is often evidence of the most persuasive character.” Bilokumsky v. Tod, 263 U.S. 149-153, 44 S.Ct. 54, 56, 68 L.Ed. 221.
Eighth. Exception was taken to an instruction which told the jury that the passage or transfer of the money was “not an essential to the making of a bet.” We have so construed the statute. Miller v. United States, 6 App.D.C. 6, 13. Other exceptions to the failure to give instructions asked by appellants (Nos. 7, 9, and 18) need be noticed only to say that No. 7 was sufficiently covered in the general charge, and Nos. 9 and 18 do not correctly state the law in the District of Columbia.
Ninth. This leaves only for consideration the denial of the motion for a new trial and in arrest of judgment based on the allegation that the jury had read or seen the headline of a newspaper and that this influenced them. The offending headline was said to have conveyed to the jury the information that gamblers were betting ten to one there would be an acquittal. Affidavits of three of the jurors were filed to show that the jury, in taking a ride between sessions of the court, had seen this headline and discussed it in the jury room, and were influenced by it. The trial judge, after a full hearing, denied the motion. Ordinarily denial of motion for a new trial or of motion in arrest of judgment is not reviewable. Sutton v. United States (C.C.A.) 79 F.(2d) 863. There is nothing here on which to base an exception to the rule.
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Appellee, v. Kerry SUTHERLAND, Appellant.
No. 89-5319.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 20, 1989.
Decided Dec. 4, 1989.
Scott F. Tilsen, Minneapolis, Minn., for appellant.
James E. Lackner, Minneapolis, Minn., for appellee.
Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges.
PER CURIAM.
Kerry Sutherland appeals the sentence imposed by the district court after he entered a plea of guilty to one count of bank larceny in violation of 18 U.S.C. § 2113(b). Sutherland was sentenced under the Sentencing Guidelines to eight months’ imprisonment followed by two years of supervised release. We affirm.
On appeal, Sutherland challenges the increase for “more than minimal planning,” and the court’s failure to depart downward to reflect his good faith efforts to assist the government and his mitigating family circumstances. Sutherland argues that the court abused its discretion by not giving him a six-month sentence which would have permitted community or intermittent confinement.
Sutherland argues that the district court incorrectly applied the guidelines by increasing the offense level for “more than minimal planning” under Sentencing Guideline 2B1.1(b)(4) by two levels. We cannot say that the district court abused its discretion in this increase in the offense level. United States v. Nunley, 873 F.2d 182, 186 (8th Cir.1989) (involving a guideline permitting decrease for playing a minimal role in criminal activity). Sutherland does not argue that the factual findings are clearly erroneous but argues that the district court’s legal conclusion that there was more than minimal planning was in error.
The district court at the sentencing found, with respect to the more than minimal planning requirement, that Sutherland and an accomplice broke into an automatic teller machine, that several months before the offense Sutherland spoke with another employee of the bank who had access to combinations of the automatic teller about robbing the machines, and that the day before the offense he called her and obtained the combination to the automatic teller. There was also evidence that Sutherland arranged for a friend to go to the automatic teller and break it open while he waited outside, which would prevent his picture from being taken by the camera in the machine. After the burglary, the money was concealed in a briefcase at another friend’s house. The district court did not abuse its discretion in determining that these facts demonstrated more than minimal planning.
Sutherland also argues that the district court failed to depart downward from the guideline range for failure to take into consideration his unusual family responsibilities. The guidelines, however, provide in section 5H1.6 that “family ties and responsibilities ... are not ordinarily relevant in determining whether a sentence should be outside the guidelines_” Sutherland’s argument has no merit in view of the clear statement in the guidelines with respect to this subject.
Sutherland also argues that the case should be remanded because the district court may have thought it could not grant a departure for “substantial assistance” absent a motion by the government. In United States v. Grant, 886 F.2d 1513 (8th Cir.1989), this court held that the requirement in Sentencing Guideline § 5K1.1 of a motion by the government for such a departure is constitutional. Finally, in United States v. Justice, 877 F.2d 664, 668-69 (8th Cir.1989), this court stated that in an appropriate case, the district court may be empowered to grant a departure for “substantial assistance” notwithstanding the government’s refusal to motion the sentencing court for such a departure. The court, however, need not reward a defendant for his cooperation if that defendant already received the benefit of his cooperation through a plea agreement, as did Sutherland. Id. Sutherland’s argument is without merit.
Accordingly, we affirm.
. The Honorable David S. Doty, United States District Judge for the District of Minnesota.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_genapel1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
LATINOS UNIDOS DE CHELSEA EN ACCION (LUCHA), et al., Plaintiffs, Appellants, v. SECRETARY OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants, Appellees.
No. 85-1573.
United States Court of Appeals, First Circuit.
Argued May 7, 1986.
Decided Aug. 12, 1986.
Alan Jay Rom, Lawyers Committee for Civil Rights Under Laws of the Boston Bar Ass’n, with whom Stuart T. Rossman, Sheara F. Friend and Gaston Snow & Ely Bartlett were on brief for plaintiffs, appellants.
Marshall D. Stein, Sp. Counsel to the City of Chelsea, with whom Cherwin & Glickman was on brief for City of Chelsea and Mayor of Chelsea, Mass.
Howard S. Scher, Civ. Div., Dept. of Justice, with whom William F. Weld, U.S. Atty., Richard K. Willard, Asst. Atty. Gen., Michael Jay Singer, Civ. Div., Dept. of Justice, Gershon M. Ratner, Associate Gen. Counsel for Litigation, Howard M. Schmeltzer, Sp. Asst. to the Associate Gen. Counsel for Litigation, and Anthony J. Ciccone, Jr., Trial Atty., HUD Office of Litigation, were on brief for federal defendants, appellees.
Before COFFIN and TORRUELLA, Circuit Judges, and MALETZ, Senior Judge.
Of the United States Court of International Trade, sitting by designation.
COFFIN, Circuit Judge.
Plaintiffs brought this civil rights action alleging that the city of Chelsea, Massachusetts, and three officials of the United States Department of Housing and Urban Development (HUD), deprived Chelsea’s minority population of equal opportunities in employment, housing and government contracts made available through several federally funded programs. The plaintiffs, Latinos Unidos De Chelsea En Acción (LU-CHA) and four individual members of LU-CHA, appeal three orders of the district court, which denied class certification, granted the federal defendants’ motion to dismiss, granted summary judgment for the city defendants on all but one claim and, after trial, held that the city did not discriminate in its Housing Improvement Program. We have carefully reviewed the record and the legal precedents and have found no reversible error.
In an effort to simplify the many issues in this case, we begin with a description of the relevant funding programs. We then present factual background about the city of Chelsea, the nature of the community development activities for which it used federal funds, and the annual reviews of the city’s projects. Finally, we discuss why we find no violations of antidiscrimination laws in the challenged areas of employment, housing and contracts.
I.
Chelsea received the federal grants at issue in this case between 1975 and 1980 under the Community Development Block Grant (CDBG) Entitlement Program, 42 U.S.C. §§ 5301-5317; the Small Cities Program (SCP), 42 U.S.C. § 5306(d), which is a subprogram of the CDBG; and the Urban Development Action Grant (UDAG) program, 42 U.S.C. § 5318. All three programs are part of Title I of the Housing and Community Development Act (HCDA) of 1974, whose primary objective “is the development of viable urban communities, by providing decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low and moderate income.” 42 U.S.C. § 5301(c). See also 42 U.S.C. § 5304(b)(3) (current law) (maximum feasible priority should be given “to activities which will benefit low- and moderate-income families or aid in the prevention or elimination of slums or blight”).
Both the CDBG and UDAG programs have nondiscrimination requirements. Recipients in both programs, under a specific provision of the HCDA, are prohibited from discriminating on the basis of race, color, national origin or sex. 42 U.S.C. § 5309. CDBG grantees also are required to certify “that the program will be conducted and administered in conformity” with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3631. 42 U.S.C. § 5304(a)(5). Title VI prohibits recipients of federal funds from discriminating on the basis of race, color or national origin in the use of those funds; Title VIII prohibits discrimination in the sale or rental of housing. The Secretary is charged with making an annual review of the CDBG recipient’s programs to determine compliance with applicable laws, and may impose conditions on a present year’s grants as a result of the review of a prior year’s program. 24 C.F.R. § 570.910(b) (April 1979).
Under the UDAG program, nondiscrimination provisions are built into the eligibility requirements. Cities may receive UDAG grants only if they have “demonstrated results in providing housing for low- and moderate-income persons and in providing equal opportunity in housing and employment for low- and moderate-income persons and members of minority groups.” 42 U.S.C.A. § 5318(b)(1) (West 1986). And in selecting one UDAG application over another, HUD must consider the “impact of the proposed urban development action program on the special problems of low- and moderate-income persons and minorities.” 42 U.S.C. § 5318(e)(3).
Aside from these nondiscrimination limitations, CDBG and UDAG recipients have wide latitude in choosing specific programs that meet the statute’s objectives. See 42 U.S.C. § 5305. Acceptable community development programs include the acquisition and rehabilitation of blighted or deteriorated property; construction of neighborhood facilities such as senior centers, utilities, streets, parks and fire protection services; code enforcement in deteriorated areas; and provision of public services concerned with child care, health and drug abuse. 42 U.S.C. § 5305(a)(l)-(12).
II.
Chelsea is a densely populated city of 1.8 square miles. According to the 1960 census, Chelsea’s population was 33,749, including about 1% minorities. The 1970 census showed that the city’s population had dropped to 30,625, of which 1.6% were black and 3.5% were Hispanic. In the mid-1970s, Chelsea’s population changed dramatically. By the time the city conducted a survey in February 1978, the Hispanic population had risen to 19.5% of the total, with other minorities representing an additional 2.6%. The survey showed that about half of the Hispanics had arrived in the preceding three years, and that less than one-fourth had lived in Chelsea for five years or more. Despite the rapid growth in the number of Hispanics, the overall population in Chelsea continued to decline, falling to approximately 25,000 in 1979. In a 1978 letter to HUD, Chelsea’s mayor attributed the outmigration to “fires, general deterioration and abandonment, high taxes and few amenities and fewer services from a poor city to a dependent population”. [App. at 469.]
The 1978 survey also revealed the following characteristics of Chelsea:
—85.6% of Hispanic households in the city were designated by HUD standards as low- or moderate-income, while 78.5% of the nonminority households also qualified for HUD assistance;
—rental households comprised 73.3% of all households in Chelsea (only 1% of black residents and 5.1% of Hispanic residents were homeowners);
—Chelsea is a city of multi-unit housing structures; 725 buildings contained a single unit; 1529 contained two units; 948 contained three units; and 455 contained four or more units; [App. at 248.]
—overcrowding was a problem for 17.8% of households surveyed, and a problem particularly for Hispanics;
—a significantly higher percentage of blacks and Hispanics (compared with non-minorities) reported housing problems such as sewage backup, leaky roof, cracked/broke interior walls or ceilings, peeling paint; rodents and insects;
—the elderly population, which is 98.6% non-minority, comprised about 20% of the total population.
Thus, when Chelsea began applying for federal community development funds in 1975, it was largely a city of renters, losing residents overall but with a growing Hispanic population that apparently was experiencing the city’s housing problems more acutely than other residents. Many housing structures needed varying degrees of physical rehabilitation, although a large percentage of the population apparently was unable to make the personal investment in the needed improvements. In addition, a 1976 survey showed a 1% vacancy rate; thus, the city presumably needed additional housing, with the greatest need in all likelihood among low-income families.
III.
Over the course of the six years under consideration in this case, Chelsea received approximately $20 million in federal funds for community development projects. We discuss below the nature of some of these projects, and the reaction toward them from agencies reviewing the city’s compliance with nondiscrimination requirements.
A. Community Development Block Grant Programs, 1975-1980. Chelsea participated in the CDBG program for five years, conducting a variety of programs aimed at different aspects of community development, including fire prevention, housing code enforcement, playground development, street lighting, and road construction. Several of these programs were begun in the areas with the largest minority populations. In addition, in the early years of the CDBG program, funds also were allocated to a bilingual day care center, a housing legal services program for low income families, minorities and the elderly, and health services directed toward lower income minority persons.
1. The first two years (1975-1976; 1976-1977)
A major project begun in the first year was the Mayor’s Housing Improvement Program (HIP), which provided grants of 20 percent of the cost of repairs undertaken in owner-occupied homes. This program was expanded the second year to include repairs done by absentee landlords “because it was felt that many of the persons the program should be affecting live in units owned by absentee landlords.” Most of the people benefiting from this particular program were not minorities because very few minorities owned their own homes.
2. The third year (1977-1978)
In the third program year, 1977-1978, the city reported that, in addition to the continuing programs, Chelsea’s Office of Community Development would hire a Community Services and Planning Officer “[t]o insure that the needs of the growing Spanish population are met”. [App. at 125.] The city also reported that it was in the final stages of developing a comprehensive plan to respond to Hispanic needs, explaining that the city was focusing on this group “because of the intense level of in-migration of Spanish speaking persons in Chelsea.”
The Massachusetts Commission Against Discrimination (MCAD) and the North Suffolk Legal Assistance Association (NSLAA) reviewed Chelsea’s first three applications, and found them to be unsatisfactory because they failed to adequately assure Chelsea’s minority residents equal participation in the program’s benefits. The NSLAA, which reviewed the third-year application, claimed that the city’s Housing Assistance Plan failed to analyze the impact of the growing Hispanic community on future housing needs. It particularly objected to Chelsea’s emphasis on rehabilitating homes through the provision of assistance to homeowners, rather than on expanding housing opportunities for low- and moderate-income persons through building new units of low- and moderate-income housing. NSLAA concluded that Chelsea’s proposals violated Title I of HCDA because they did not meet “the primary objective of the Act by principally benefittipg low- and moderate-income persons.” See 24 C.F.R. § 570.304(a)(2) (April 1979) (requiring fund recipients to pinpoint special needs of minority community and to design programs to fulfill them). Moreover, NSLAA concluded, the failure to specially assist the minority community excluded minorities from meaningful participation in the benefits of Title I, thus violating Title VI of the Civil Rights Act of 1964 and the nondiscrimination provision of Title I, 42 U.S.C. § 5309.
NSLAA also pointed to the low percentage of minority persons employed in city agencies receiving federal funds and charged that “maintaining these discriminatory employment practices [violates] Title VI of the 1964 Civil Rights Act as well as the CDBG Act itself.” As a result of NSLAA’s concerns, HUD agreed to condition its third-year grant approval on the city’s promise to conduct a survey in cooperation with NSLAA to determine the size and needs of the Hispanic community.
3. The fourth and fifth years (1978-1979; 1979-1980)
The fourth and fifth years of CDBG funding transpired in similar fashion. Chelsea implemented some programs of apparently direct benefit to the Hispanic community, including initiation of a Hispanic Neighborhood Center Project that provided housing referrals, job information and other services to the Hispanic community. Nevertheless, both the MCAD and HUD’s Fair Housing & Equal Opportunity Division (FH & EO Division) concluded that Chelsea’s actions to prevent discrimination continued to be inadequate. The FH & EO Division found that minority employment remained low (2.1% of all full-time city employees in 1978-79), and that of 32 business contracts awarded thus far during the CDBG program, none had been awarded to a minority.
In the fourth year, HUD responded to the persistent concerns about Chelsea’s performance by requiring revisions in the city’s Housing Assistance Plan to provide for an increase in family housing goals. HUD also required that Chelsea submit a “special assurance” that its employment practices were in compliance with 24 C.F.R. § 570.601(b)(iv) (April 1979), which requires that recipients ensure that all residents have equal access to CDBG program benefits. [App. at 284.] The “special assurance” is a form of remedial action in which HUD requires grant recipients to specify performance goals and a specific timetable for achieving results within six months. See 24 C.F.R. § 570.910(b)(4) (April 1, 1979).
In October 1978, FH & EO Division staff conducted a monitoring visit to review Chelsea’s performance under the CDBG program. They concluded that Chelsea had not taken the necessary “affirmative actions” to provide minority employment and that the city’s “special assurance” was “woefully inadequate”; rather than setting goals and timetables for the hiring, training and promoting of minority employees, Chelsea’s mayor had simply sent a letter assuring HUD that the city would not discriminate. The FH & EO Division also found Chelsea’s actions to prevent housing discrimination to be unacceptable, and it recommended the following: (1) establishment of a goal of hiring at least 10 percent minority contractors; (2) establishment of a Mayor’s Office of Fair Housing; (3) design of a Fair Housing Plan that would provide for family rather than elderly housing; (4) hiring a full time compliance officer who is bilingual. [App. at 298.]
Apparently in light of Chelsea’s failure to improve, HUD attached “special conditions” to the fifth-year CDBG grant in the areas of employment, fair housing and minority entrepreneurship. These conditions restrict the use of funds in those areas and are a more serious sanction than the prior request for a “special assurance”. See 24 C.F.R. § 570.910(b)(9) (April 1979). Specifically, in noting that Hispanics had not ben-efitted from the city’s housing rehabilitation programs in proportion to their numbers in the community, HUD recommended changes in Chelsea’s programs such as the establishment of a preference for Hispanic homeowners and for homeowners with Hispanic tenants; expansion of the rehabilitation programs to multi-family structures occupied by Hispanics and other minorities; and homeownership counseling for Hispanics and other minority residents of Chelsea. HUD also required development of an affirmative action plan that would establish a goal for hiring minorities at the rate of at least 51 percent in city agencies receiving CDBG funds, establishment of a compliance unit, and development of goals for awarding business contracts to minorities. [App. at 363.]
B. Small Cities Program, 1978-1981. Starting in 1978, Chelsea received SCP funds, as well as CDBG funds, for the same type of community programs. In its review of Chelsea’s first SCP application in 1978, the FH & EO Division noted that Chelsea had failed to propose explicit activities to meet its obligations under Titles VI and VIII. Those obligations, according to the Division, arose from Title VI and HCDA regulations specifying that:
“Even in the absence of... prior discrimination, a recipient in administering a program should take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, national origin[, or sex].” 24 C.F.R. § 1.4(b)(6)(ii) (April 1985) (sex included as a status in HCDA regulation only). See
24 C.F.R. § 570.601(b)(4)(ii) (April 1979). HUD approved the SCP grant without conditions, however, noting in its approval letter that the FH & EO concerns would be communicated to the city in a separate letter with the expectation that the city would give the comments immediate attention.
In awarding the second-year SCP funds, HUD imposed the same “special conditions” that it had attached to the fifth-year CDBG grant. The following year, 1980-1981, the FH & EO Division review report concluded that Chelsea had “minimally met the conditions imposed” during the previous year. In order to assure greater efforts to improve, the Division recommended that the city provide a series of special assurances, including continuation of the 51 percent hiring rate for minorities, continuation of a 10 percent minimum goal for awarding contracts to minority businesses, and continuation of funding and staffing of a fair housing program “designed to assure equal access to housing and other City services”. HUD adopted the FH & EO Division recommendations.
In 1981, the third year of SCP participation (Program Year 6), the FH & EO Division again found Chelsea’s housing activities inadequate to meet the needs of minorities, and HUD awarded that year’s grant with the understanding that the special assurances in the areas of minority employment, fair housing and minority contracting would remain in effect at least during the next year.
C. Urban Development Action Grant. Chelsea applied in 1978 for $6,794,000 in UDAG funds for development of the Chelsea Naval Hospital. Its proposal called for creation of a new residential area, rehabilitation of existing housing, restoration of an historic area, development of a 26-acre public park, the opening of the waterfront to commercial and recreational uses and the set aside of about 14 to 20 acres of land for industrial development. The residential proposal included construction of 300 luxury apartments, 570 market rate apartments and 300 subsidized housing units for the elderly. Additional elderly housing would be constructed in other neighborhoods as part of the UDAG project. [App. at 1009.] In addition, 132 low-income family housing units would be rehabilitated in a nearby neighborhood.
The FH & EO Division rated Chelsea’s proposal as fair, commenting that it “minimally reduces the magnitude of the special problems of minority persons”. The Division noted that there was no provision for low-income jobs, and the only low-income family housing provided was the 132 rehabilitated units.
In recommending the project for approval, the Boston Area Office noted that the housing proposed was geared toward middle and upper income persons, but that revitalization of the surrounding neighborhoods would provide expanded housing opportunities for low and moderate-income persons. In addition, the Area Office memo noted that about 300 jobs would be created by the project, many of them for lower-income persons, and another 400 jobs would be saved. Finally, the memo noted that the added tax revenue generated by the project would significantly help the city to provide services to the low income and minority population. [App. at 759.]
IY.
This factual background confirms appellants’ contentions that Chelsea’s actions did not always reflect a top priority concern for its minority residents. The city consistently used a large portion of its federal funds for programs that were not specifically directed at minority housing needs. Despite repeated criticism from the local reviewing agencies and HUD’s FH & EO Division, Chelsea did not refocus its community development program so as to emphasize new construction of low-income family housing. Similarly, the city’s record on employment was largely the same at the end of the relevant grant years as it was when Chelsea began receiving federal funds in 1975. In 1975, in the six city departments receiving federal funds, Chelsea had 256 employees, only one of whom, a black, was a member of a minority group. In 1980, the city reported that ten of 389 permanent employees in all city departments were minorities. And in an affirmative action report submitted to HUD in April 1981, Chelsea stated that only six of its 375 fulltime employees were minorities. Reports to HUD, from the FH & EO Division and outside agencies, consistently complained of inadequacies in Chelsea’s activities, prompting HUD to demand special assurances and impose conditions on the grant awards.
These facts, however, do not completely illumine the nature of Chelsea’s assistance to its minority community. The hiring figures throughout the grant years, as opposed to the final employment figures in 1981, illustrate a more proportional relationship between the government’s activities and Chelsea’s minority population. Likewise, the amount of housing aid, other than through the Housing Improvement Program, reflects a similar proportionate relationship. We present two tables below, one showing city hiring between 1975 and 1981, and the other showing how Chelsea’s total housing assistance was distributed.
Hiring in City Departments Receiving CDBG Funds"
Program Year 4 (1978-1979) 18 2 11.1%
Housing Assistance
Program and Year Total Assisted Minority-assisted (HOUSEHOLDS) Minority Percentage
These two tables illustrate that Chelsea was not ignoring its minority community. Plaintiffs’ claims, therefore, must rest on the city’s failure to do enough to meet its civil rights obligations, and not on the city’s complete neglect of those obligations.
V.
The district court granted the city defendants’ motion for summary judgment except as to plaintiffs’ claim that the municipal defendants discriminated in the Housing Improvement Program. After trial, the court found that Chelsea and its officials had not violated any laws in operating that program. We are therefore governed on this appeal by two different standards. Considering the facts in the light most favorable to the plaintiffs, we must determine whether there exists a genuine issue as to any material fact relating to the alleged discrimination in employment, contracting and the general housing program, those claims dismissed on summary judgment. Mutual Fire, Marine & Inland Insurance Co. v. Costa, 789 F.2d 83, 85 (1st Cir.1986); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). And in reviewing the merits of the district court’s judgment on the HIP program, we must determine whether that court either erred as a matter of law or reached clearly erroneous factual conclusions leading to the wrong result. Fed.R.Civ.P. 52(a); Anderson v. Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); Sweeney v. Board of Trustees, 604 F.2d 106, 109 n. 2 (1st Cir.1979), cert. denied, 444 U.S. 1045, 100 S.Ct. 733, 62 L.Ed.2d 731 (1980). We also must consider whether HUD properly was dismissed from the case.
We shall address each statute and constitutional provision in turn, considering separately the issues of employment, housing and contracting discrimination. Because of the number of issues and sub-issues, we think it helpful to furnish the following roadmap to our substantive discussion:
A. Title VI Claims
1. Employment
—discriminatory intent
—discriminatory impact
2. Housing
—discriminatory intent
—discriminatory impact
3. Contracts
B. Title VIII Claims
—substantive issues against Chelsea
—private right of action against HUD
C. Title I of the Housing and Community Development Act
—private right of action
D. Constitutional Claims
A. Title VI
Plaintiffs allege that the actions of Chelsea and HUD violated both Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., and regulations promulgated under that statute, 24 C.F.R. § 1.4. They claim that Chelsea’s actions in failing to provide sufficient opportunities for minorities in employment, housing and business contracting constituted prohibited discrimination. Plaintiffs’ claim against HUD is that the agency continued unconditionally to provide federal funds to Chelsea despite the city’s alleged discriminatory practices.
We conclude that the district court correctly rejected plaintiffs’ claims against Chelsea under Title VI. As to HUD, it can not be found liable under Title VI for failing to take action against Chelsea if the city did not, in fact, discriminate against minorities in violation of the statute. Because we conclude that Chelsea did not violate Title VI, plaintiffs’ claim against HUD also must fail.
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, provides:
“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.”
To prevail with a direct claim under the statute, plaintiffs must show that defendants acted with discriminatory intent. Guardians Ass’n v. Civil Service Commission of the City of New York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). Plaintiffs have not presented sufficient proof of such intent in any of the three areas of employment, housing or contracting.
1. Employment. Plaintiffs do not significantly contest the hiring figures listed in the chart in Section IV. They apparently concede that, during the six grant years at issue in this case, Chelsea hired between 16 and 18 minority persons, ranging from 11 percent to possibly 75 percent of the city’s annual hires. Nevertheless, they contend that the city’s employment record permits a conclusion that it intentionally discriminated against minorities. They point out that, in 1981, the final grant year under consideration, Chelsea still had only six minority employees, concentrated in the community development department. Plaintiffs argue that many of those hired during the previous years were only temporary employees or were employees who left because of discriminatory practices on the part of the city. They claim that, under International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340 n. 20, 97 S.Ct. 1843, 1856-57 n. 20, 52 L.Ed.2d 396 (1977) (Teamsters), gross statistical disparities between the racial composition of the work force and that of the population at large can demonstrate a prima facie case of intentional racial discrimination.
We find two problems with plaintiffs’ argument. First, while statistical disparity may be sufficient to establish a prima facie case of employment discrimination, “statistics ‘come in infinite variety’ and their usefulness or weight ‘depend[s] on all of the surrounding facts and circumstances,’ Teamsters v. United States, 431 U.S. at 340, 97 S.Ct. at 1856, and on ‘ “the existence of proper supportive facts and the absence of variables which would undermine the reasonableness of the inference of discrimination which is drawn” ’ therefrom, White v. City of San Diego, 605 F.2d 455, 460 (9th Cir.1979)”, EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 645 (4th Cir.1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). The context in which we view the statistics in this case is far different from that considered by the Supreme Court in Teamsters, where plaintiffs had claimed discrimination against minorities in the hiring of so-called “line drivers” for a freight company. Of 1,828 line drivers, only 8 (0.4%) were black and 5 (0.3%) were Spanish-surnamed. 431 U.S. at 337, 97 S.Ct. at 1855. This statistical evidence was bolstered with testimony of more than 40 specific instances of discrimination, which “brought the cold numbers convincingly to life”. Id. at 338-39, 97 S.Ct. at 1856.
In contrast, in this case, the evidence beyond the statistical disparity shows that the city was, in fact, hiring significant numbers of minorities in relation to the total number of hires, and in some years the percentage of minority hires exceeded the minority percentage in the workforce. It is true that, as an affirmative action policy, the city could have hired more minorities; for example, the city could have chosen to hire only minorities. And plaintiffs may be correct that the ultimate poor statistical showing as to the number of minority employees may reflect an inhospitable working environment for them. But Chelsea is not required to adopt an affirmative action policy in order to avoid a finding of intentional discrimination under Title VI. In fact, it may be prohibited from employing affirmative action practices in the absence of a prior finding of discrimination. See Wygant v. Jackson Board of Education, — U.S. -, 106 S.Ct. 1842, 1847, 90 L.Ed.2d 260 (1986) (Powell, J., plurality opinion) (“the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination”) (emphasis added). And poor working conditions for Chelsea’s minority employees is a matter of pure speculation on this record.
Had plaintiffs produced evidence of discrimination from minorities who had been hired during the grant years and claimed either that they were fired improperly or left under duress, this would be a much different case. But when framed against the hiring percentages, the employment statistics by themselves simply do not add up to a case in which impact alone provides sufficient evidence of invidious intent. Cf., e.g., Teamsters, 431 U.S. at 337, 97 S.Ct. at 1855; Gomillion v. Lightfoot, 364 U.S. 339, 341, 81 S.Ct. 125, 127, 5 L.Ed.2d 110 (1960) (Alabama legislature changed shape of City of Tuskegee from a square into irregular twenty-eight-sided figure with effect of removing all but four or five of city’s 400 black voters); Yick Wo v. Hopkins, 118 U.S. 356, 374, 6 S.Ct. 1064, 1073, 30 L.Ed.2d 220 (1886) (of 200 qualified Chinese applicants for running laundries, all rejected, while 80 non-Chinese permitted “to carry on the same business under similar conditions”).
A second factor cautions against assuming that the statistical disparity in this ease reflects discriminatory intent on the part of the city. Unlike cases where grossly disproportionate numbers logically reflect a longstanding policy of unequal treatment, see, e.g., Teamsters, 431 U.S. at 337, 97 S.Ct. at 1855, Chelsea’s minority community first became a significant factor in the city during the years in which plaintiffs allege the city practiced intentional discrimination. In a city that is losing residents, and presumably not hiring large numbers of new employees, the fact that a quickly growing minority community is underrepresented in government employment is hardly surprising. In such a case, where hiring statistics are adequate, statistical disparity alone simply is insufficient to establish a prima facie case of intentional discrimination.
Plaintiffs also argue that they presented sufficient evidence to show that Chelsea’s hiring practices had a discriminatory effect on minorities, a result that violates Title VI regulations. The primary regulation effectuating the nondiscrimination provision of Title VI states:
“A recipient, in determining the types of housing, accommodations, facilities, services, financial aid, or other benefits which will be provided under any such program or activity, or the class of persons to whom, or the situations in which, such housing, accommodations, facilities, services, financial aid, or other benefits will be provided under any such program or activity, or the class of persons to be afforded an opportunity to participate in any such program or activity, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting persons to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity as respect to persons of a particular race, color, or national origin.” 24 C.F.R. § 1.4(b)(2)(i) (April 1985) (emphasis added).
Plaintiffs argue that, even if we find that the employment statistics are insufficient to establish a prima facie case of intentional discrimination, the numbers at least show a prima facie case of disparate impact in Chelsea’s hiring practices. They rely on Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), in which the Supreme Court held that Title VII, 42 U.S.C. § 2000e, bars “practices, procedures, or tests neutral on their face, and even neutral in terms of intent... if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.”
Plaintiffs’ argument reflects a misapplication of disparate impact law. Claims of disparate impact usually involve ‘‘employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Teamsters, 431 U.S. at 336 n. 15, 97 S.Ct. at 1854-55 n. 15 (emphasis added). Plaintiffs, however, do not challenge a specific employment practice or policy, such as a height requirement or passing score on a test, but argue generally that the statistical evidence as to Chelsea’s employment record establishes discriminatory impact because few minorities work for the city. In essence, their argument must be that subjective employment decisions led to the discriminatory result of disproportionately few minority city employees.
Whether disparate impact analysis is applicable when plaintiffs do not challenge specific, objective employment criteria is a subject of dispute both within and among the circuits. The Fourth, Fifth, Seventh, Eighth and Ninth Circuits have held that the disparate impact model should not be used to evaluate subjective decisionmaking procedures. EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 639 (4th Cir.1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); Cunningham v. Housing Authority of the City of Opelousas, 764 F.2d 1097, 1099 (5th Cir.), cert. denied, — U.S. -, 106 S.Ct. 530, 88 L.Ed.2d 461 (1985); Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 188 (5th Cir.1983); Coates v. Johnson & Johnson, 756 F.2d 524, 530-31 n. 4 (7th Cir.1985); Harris v. Ford Motor Co., 651 F.2d 609, 611 (8th Cir.1981); Atonio v. Wards Cove Packing Co., 768 F.2d 1120, 1133 (9th Cir.1985). The Fifth and Ninth Circuits also have had panels decide the other way. See Page v. U.S. Industries, Inc., 726 F.2d 1038, 1046 (5th Cir.1984); Atonio, 768 F.2d at 1132-33 (describing Ninth Circuit conflict). Finally, the Sixth, Tenth, Eleventh and District of Columbia Circuits have found impact analysis applicable to subjective employee selection practices. Lujan v. Franklin County Board of Education, 766 F.2d 917, 930 n. 19 (6th Cir.1985); Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88, 93 (6th Cir
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_4_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.
Ruby FLOWERS, et al., Plaintiffs-Appellees, v. Ruth M. WILEY, Grayson County Tax Assessor Collector, et al., Defendants-Appellants.
No. 81-2053.
United States Court of Appeals, Fifth Circuit.
May 12, 1982.
Mark White, Atty. Gen., Richard L. Ar-nett, Laura Martin, Asst. Attys. Gen., Austin, Tex., for White & Hill.
Clinton & Richards, David R. Richards, Austin, Tex., Mexican American Legal Defense & Educational Fund, Joaquin G. Avila, Jose Garza, San Antonio, Tex., for plaintiffs-appellees.
Before COLEMAN, POLITZ and GAR-WOOD, Circuit Judges.
COLEMAN, Circuit Judge.
The merits of this voting rights lawsuit are no longer in issue. The parties are arguing about the appropriate compensation for the attorneys who represented the prevailing plaintiffs. The District Court directed the defendants to pay the Mexican-American Legal Defense and Educational Fund (MALDEF) $29,959.00 in attorneys’ fees and $971.69 in expenses. The defendants were also ordered to pay David Richards $11,700.00 as attorneys’ fees. For the reasons hereinafter appearing we modify the judgment of the District Court and, as modified, we affirm.
Since 1974 the standard in this Circuit for the computation of attorneys’ fees to be allowed prevailing parties where such fees are authorized by law has been clearly defined. Litigation on the subject has stamped down a clearly defined trail which no party or litigant should have any difficulty following. They need only consult Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir., 1974) and the numerous cases which have firmly followed the directions there set out.
We also direct the attention of the parties to our recent case of Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir., 1979), a Texas suit brought in behalf of inmates of the Texas Department of Corrections. Principal counsel was allowed $90 per hour for trial and immediate trial preparation time, with $75 an hour for other services, and other counsel, in view of her experience and the degree of her trial participation, was allowed $35 an hour for trial and $25 an hour for other services. Also, in that case we declined to address issues not raised in the District Court.
We proceed to dispose of this case in keeping with those principles.
What it all comes down to, with deference, is that no “across the board” hourly fee of $150 an hour should have been allowed all of the attorneys in this case, which was done without regard to experience and qualifications, the nature of the professional activity, or the particular contribution to the success of the lawsuit. Moreover, there should have been no compensation for hours spent in duplicative activity or spent in the passive role of an observer while other attorneys performed. Finally, where enhancement for contingency was justified it should not have been set at fifty percent of the base rate.
The District Court stated that the attorneys for the plaintiffs were acknowledged experts in the field of voting rights, that they had disclosed their expertise throughout the conduct of the litigation. As to Attorney Richards this was clearly correct since he had been practicing law for eighteen years, with wide experience in litigation of this type. The record shows, however, that Mr. Korbel had been practicing for seven years, that Mr. Kauffman had been practicing for two years, while Ms. Hanten, who worked exclusively on the attorneys’ fees portion of the case, had practiced only for the same length of time. Mr. Alvia worked only on the fee application but the record shows that he was experienced in the Civil Rights field.
An attorney from Dallas, Texas testified as an expert on customary fees. He stated that his firm charged as much as $100 per hour for some labor representation and as little as $40 an hour for individual representation. The only evidence as to what would amount to a reasonable fee in a case such as we now have l>efore us appears in the affidavit of Mr. Richards, who said that he had been awarded $75-$80 per hour in another case which he believed to be less complex than this one. He thought $100 per hour would be appropriate.
Mr. Richards testified by affidavit that the acceptance of employment in this case had not precluded other employment and that this was not an undesirable case.
The District Court concluded that the attorneys were involved in a novel case since this was the first case concerning the extension of the Voting Rights Act (42 U.S.C., Section 1973) to the State of Texas and that the legal issues were difficult. The litigation involved the validity of Texas Senate Bill 300 which had ordered a statewide reregistration of all voters in the state. The plaintiffs had stated in their original trial brief that the substantive issue concerning the effect of Bill 300 was solely within the province of the District of Columbia district court or the Attorney General of the United States, which was undoubtedly correct. The issue in our Three-Judge District Court was whether Bill 300 was subject to preclearance under Section 5 of the Voting Rights Act and, if so, whether an injunction should issue preventing its implementation until it was precleared. This was an issue on which it is hardly conceivable that the plaintiffs could possibly lose.
THE TIME CLAIMED
The respective attorneys claimed compensation for the following hours:
On the Merits
Mr. Richards, 70 hours.
Mr. Korbel, 122.5 hours.
Mr. Kauffman, 58 hours.
On the Fee Application
Mr. Richards, 12 hours.
Mr. Kauffman, 3 hours.
Ms. Hanten, 12 hours.
Mr. Avila, 13.8 hours.
Expenses
MALDEF, $971.69 - $386.84 for travel and $474.85 for a court reporter.
Since Mr. Richards was the principal attorney his time is not disputed.
The defendants-appellants. strongly contend that the 180.5 hours claimed by Messrs. Korbel and Kauffman is highly excessive as this amounted to 4'A weeks of full time effort on a relatively simple case. Appellees respond that this time was not challenged in the District Court and is raised for the first time on appeal. That being so, we make no effort to review or revise the total hours allowable on the merits, except as to what now appears.
Mr. Kauffman claimed fourteen hours for preparation of exhibits for the hearing on the temporary restraining order and Korbel claimed eight hours for the same exhibit. The eight exhibits offered included two letters, three documents, one certificate of notification, and two publications from the Federal Register. The hours were awarded for preparation of exhibits for the November 25, 1975 hearing. Appellees claim these hours were justified in the preparation of witnesses and research of evidentiary rules. The hours claimed on this facet of the professional effort would appear to be excessive and duplicative. However, the place to have straightened this out, with appropriate inquiry and evidence, fixing a reasonable time figure, was in the District Court, not here. Thus, we hold that any question on this subject was waived. Moreover, we find nothing in the record from which the correct time could be computed as a matter of law or on undisputed facts.
Appellants further complain about ten hours of attorneys’ fees awarded Mr. Korbel for drafting and sending out notice of the lawsuit to the tax assessors-collectors. One hour, they say, would have been more than sufficient for drafting a notice letter and sending out the notice is non-legal work. Appellees respond that there are 254 tax assessors in Texas and that notice was an important ¡joint to the District Court. The facts being clearly open to evaluation on what amounts to stipulated facts, we hold that Mr. Korbel was entitled to compensation for only one hour of this claimed time and we modify accordingly.
Mr. Kauffman claimed eight hours after the final order of the Three-Judge Court for study of transcripts and research on remedies in the event there should be a violation of the court order. Mr. Richards, however, had stated that any question of contempt was not a likely eventuality. This eight hours must be deducted.
In addition to this, the District Court awarded Mr. Kauffman six hours of travel time and eight hours for the hearing and conference in Tyler, Texas, for a temporary restraining order on November 3, 1976. However, Mr. Kauffman made no statement at the hearing and his attendance duplicated that of principal counsel, Mr. Richards. “The time of two or three lawyers in a courtroom or conference when one could do, may obviously be discounted”, Johnson, supra, at 717. This fourteen hours allowed Mr. Kauffman must be eliminated.
The Hours Correctly Allowable
The result of the foregoing reasoning is that the allowable hours for counsel on the merits should have been, and is:
Mr. Richards, 70 hours.
Mr. Korbel, 113.2 hours.
Mr. Kauffman, 36 hours.
The Appropriate Hourly Compensation
Within the four corners of this case we are compelled to hold that increasing the hourly compensation rate by fifty percent was an abuse of discretion. We think that an increase of 33'/!% stands at the outer limits of generosity but since we are not prepared to hold that such an increase would amount tq an abuse of the discretion which district courts have, and must have, in cases of this type we. simply modify the increase for the time on the merits to 33V*7c.
Obviously, there should be no contingency allowance for the hours spent as to the attorneys’ fees. The plaintiffs had prevailed; nothing remained but a computation of time and establishment of a reasonable rate. Certainly, the base rate for time spent on computing and enforcing attorneys’ fees should be less than that allowed for professional services rendered primarily on the merits.
Considering the record, briefs, and oral argument, we hold that the total compensation to be awarded the attorneys should be as follows:
On the Merits
Mr. Richards, 70 hours, at $133 per hour (100 \ 1.33)
Mr. Korbel, 113.2 hours, at $100 per hour ( 75 x 1.33).
Mr. Kauffman, 36 hours, at $ 66 per hour ( 50 x 1.33).
On the Attorneys' Fees
Mr. Richards, 12 hours, at $80 per hour {80f'í of $100).
Mr. Avila, 13.8 hours, at $55 per hour (8(K*í of $ 66).
Mr. Kauffman, 3 hours, at $40 per hour (80'r of $ 50).
Ms. Hanten, 12 hours, at $40 per hour (80rr of $ 50).
The expense item, a relatively small one, we leave undisturbed.
As so modified, the judgment of the District Court is affirmed and the mandate will issue accordingly.
All parties will bear their own costs and the plaintiffs-appellees are awarded no attorneys’ fees for services on appeal.
As Modified, AFFIRMED.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
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songer_casetyp1_9-3
|
O
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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 "miscellaneous".
Rafael CASTILLO-MAGALLON and Martha Ismelda Naranjo de Castillo, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 83-7006.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 8, 1984.
Decided April 4, 1984.
Paul D. Edmondson, Yakima, Wash., for petitioners.
Joan E. Smiley, Washington, D.C., for respondent.
Before WRIGHT and HUG, Circuit Judges, and MACBRIDE, District Judge.
The Honorable Thomas J. MacBride, Senior United States District Judge for the Eastern District of California, sitting by designation.
HUG, Circuit Judge:
Petitioners Rafael Castillo-Magallon and his wife Martha Ismelda Naranjo de Castillo seek review of a Board of Immigration Appeals (“BIA”) decision dismissing their appeal from a decision of the Immigration Judge (“U”) ordering them excluded from the United States pursuant to section 212(a)(20) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(20). Petitioners contend that the IJ erred in refusing to consider their application for suspension of deportation under section 244(a)(1) of the INA, 8 U.S.C. § 1254(a)(1). The INS contends that this appeal must be dismissed on the ground that this court lacks jurisdiction to review exclusion proceedings.
FACTS
Both petitioners entered the United States from Mexico without inspection, she in June, 1973, and he in February, 1974. Apparently they were subjected to deportation proceedings at some point. The IJ’s decision mentions only that “[o]n August 27, 1977, both applicants were notified that due to the court order in Silva v. Levi, ... no action would be taken in their cases until further action by the Court.” The Silva case had been brought to “recapture” Western Hemisphere visa numbers previously given to Cuban refugees. See Silva v. Bell, 605 F.2d 978 (7th Cir.1979). On July 2, 1980, petitioners were issued Form 1-512, Authorization for Parole or Conditional Entry, on which it was noted that they were presently in the United States pursuant to the Silva order and permitted to leave and return to the United States pending a filial resolution of that order. Petitioners then left the United States for two weeks to visit an ailing parent in Mexico, returning on July 26, 1980, as “parolees.”
When the Silva case was resolved in a way that offered petitioners no relief, the INS initiated exclusion proceedings against them. At a hearing on July 26, 1982, petitioners were found excludable as charged. They sought to apply for suspension of deportation, but the IJ ruled that they were not entitled to do so. The BIA affirmed, holding that petitioners were clearly ex-cludable and that it had no jurisdiction to consider suspension of deportation in exclusion proceedings.
ANALYSIS
This court would have jurisdiction to hear this direct appeal from the BIA if the IJ’s order were a final order of deportation. 8 U.S.C. § 1105a(a). An alien against whom a final order of exclusion has been made, however, “may obtain judicial review of such order by habeas corpus proceedings and not otherwise.” 8 U.S.C. § 1105a(b). Since the record in this case leaves no doubt that the IJ intended to issue an order of exclusion, this court lacks jurisdiction to hear the appeal.
That the IJ refused to consider the petitioners’ application for suspension of deportation does not change the result. At an exclusion proceeding an alien is not entitled to seek a suspension of deportation. 8 U.S.C. § 1252(e); Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 326, 74 L.Ed.2d 21 (1982). In any case, the IJ’s refusal occurred in the course of an exclusion proceeding. Even if the IJ had erred, we would lack jurisdiction to hear a direct appeal.
Petitioners may be understood to contend that they were entitled to a deportation proceeding rather than an exclusion proceeding. Their argument is that the Silva injunction gave them the status of permanent resident aliens and, therefore, that the issue of whether their return from Mexico in 1980 was an “entry” for purposes of section 101(a)(13) of the INA, 8 U.S.C. § 1101(a)(13), can be litigated only in deportation proceedings. If a permanent resident alien has not “meaningfully departed” the United States, then he cannot be said to “enter” the United States when he returns, and he is thus not subject to exclusion proceedings under section 236(a), 8 U.S.C. § 1226(a). The Supreme Court has held, however, that the issue of “entry” may indeed be decided at an exclusion hearing. Landon v. Plasencia, 103 S.Ct. at 328-29. Whether there was “entry” is a jurisdictional fact. Id. at 328.
In the present ease, the IJ did not specifically address this issue but simply assumed that an exclusion proceeding was appropriate. If he erred in that tacit assumption, he did so in the course of determining his jurisdiction to hold an exclusion proceeding. Review of an exclusion proceeding, even one in which the IJ’s jurisdiction is challenged, is available only in a habeas corpus proceeding in the district court.
This appeal is DISMISSED for lack of jurisdiction.
Question: What is the specific issue in the case within the general category of "miscellaneous"?
A. miscellaneous interstate conflict
B. other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power)
C. attorneys (disbarment; etc)
D. selective service or draft issues (which do not include 1st amendment challenges)
E. challenge to authority of magistrates, special masters, etc.
F. challenge to authority of bankruptcy judge or referees in bankruptcy
G. Indian law - criminal verdict challenged due to interpretation of tribal statutes or other indian law
H. Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights)
I. Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act)
J. Indian law - federal regulation of Indian land and affairs
K. Indian law - state/local authority over Indian land and affairs
L. Indian law - tribal regulation of economic activities (includes tribal taxation)
M. other Indian law
N. international law
O. immigration (except civil rights claims of immigrants and aliens)
P. other
Q. not ascertained
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.
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: 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_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
INFORMATION RESOURCES, INC., a Corporation, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 91-1188.
United States Court of Appeals, Fifth Circuit.
Jan. 16, 1992.
W.D. Masterson, Kilgore & Kilgore, Dallas, Tex., for plaintiff-appellant.
Marvin Collins, U.S. Atty., Louise P. Hytken, Asst. U.S. Atty., Tax Div., Dept, of Justice, Dallas, Tex., Gary R. Allen, Chief, Mary F. Clark, Robert S. Pomerance, Appellate Sec., Tax Div., Dept, of Justice, Washington, D.C., for defendant-appellee.
Before WILLIAMS, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
The Internal Revenue Service (“I.R.S.”) erroneously filed tax liens against Information Resources, Inc. Information Resources brought suit for damages for both the erroneous filing of the liens and the failure to issue a timely release of the liens pursuant to 26 U.S.C. §§ 7432 and 7433. The district court granted the government’s motion for summary judgment because Information Resources failed to exhaust its administrative remedies. Information Resources admits that it did not exhaust its administrative remedies but urges that an exception to the doctrine of exhaustion of administrative remedies should apply. Because the administrative remedy is inadequate under Section 7432, and because there were no applicable administrative remedies to exhaust under Section 7433, we reverse the summary judgment.
I. FACTS
Information Resources, Inc. is a Texas corporation engaged in the business of selling computer software. The company failed to pay on time its federal withholding taxes for the fourth quarter of 1988. As of March 20, 1989, Information Resources had paid less than $23,000 of its tax liability of $44,837.82. On or before April 10, 1989, Information Resources made a further payment of $10,000 in satisfaction of its tax liability. This left an unpaid balance of $16,403.87. On April 10, 1989, it received a Letter 1058-Notice of Intent to Levy from the I.R.S. The letter granted Information Resources ten days to pay the amount owed or a lien would be filed against the company’s property.
On April 20,1989, David Salinas, a representative of Information Resources, met with I.R.S. Officer Kriss Brooks to discuss payment of the obligation. Information Resources claims the parties entered into the following agreement: Information Resources offered to pay the full amount of taxes owed on April 21, 1991, but Brooks stated he would not be in his office that day because it was his scheduled day off. Therefore, the parties agreed that Information Resources would pay the full amount on April 24,1991. Pursuant to this alleged agreement, Brooks agreed not to institute any enforced collection action against the company. The government denies the existence of any such agreement. Whether there was an agreement is, of course, an issue of fact which ultimately must be determined by a trial court if it is relevant.
On April 24,1989, Information Resources delivered to Brooks a check in the amount of $16,785.44, representing full satisfaction of its tax liability plus accrued interest. Brooks accepted the check and duly noted his initials either upon the check or upon a copy of the check.
Despite the alleged agreement between the parties, Brooks instituted an enforced collection action on April 21 by filing a request for a Notice of Federal Tax Lien. The liens were filed on April 25 and 26, the first two days immediately following full payment of the debt. On April 25, the federal tax liens were filed in the Dallas County Clerk’s Office and on April 26, in the Office of the Secretary of State of Texas in Austin. Even upon receipt of payment in full for the taxes on April 24, Brooks did not attempt to prevent the filing of the liens on April 25 and 26. Information Resources became aware of the existence of the liens when notice of the liens was published on April 27, 1989, in the Daily Commercial Record, a Dallas legal newspaper.
At this time in early 1989, Information Resources was competitively bidding against several other companies to sell a software package to Ward Petroleum, Inc. Due to the filing of the liens, Ward Petroleum became concerned with the continuing operation of Information Resources, and Ward Petroleum, therefore, decided to reject the company as a bidder. In a deposition, Richard Tozzi, Chief Financial Officer for Ward Petroleum, testified that Ward Petroleum’s evaluation of Information Resources was significantly influenced by the filing of the Federal tax lien. Upon learning of the tax lien, Ward Petroleum then solicited an additional bid for the software application from Artesia and ultimately awarded the project to Artesia.
On or about April 27,1989, David Salinas spoke to Sherene Johnson, an advisor at the Special Procedures Section-Lien Section of the I.R.S., and requested a description of the administrative remedies to obtain a release of an erroneously filed tax lien. Johnson informed Salinas that Information Resources should send a letter to the Internal Revenue Service requesting a release of the lien. Johnson was incorrect as to the precise procedures to follow.
On May 1, 1989, Information Resources sent a letter to Brooks at the Internal Revenue Service in Farmers Branch, Texas, respectfully requesting that Certificates of Release be issued for the tax liens. Both the company and the federal government now recognize that this was not the correct method for obtaining a Certificate of Release. The letter should have been sent to the District Director of the I.R.S., and it should have been accompanied by proof of payment of the tax. The liens were not removed until September 22, 1989, nearly five months after Information Resources requested their removal.
On or about October 25, 1989, Information Resources received a letter written on behalf of the District Director of the I.R.S. apologizing for the concern and inconvenience caused by the “erroneous” filing of the liens on April 25, 1989. Information Resources claims that by the time the release was granted and the apology letter was sent, substantial damages had already occurred.
Information Resources filed a complaint in the district court against the I.R.S. for recovery under 26 U.S.C. §§ 7432 and 7433. Section 7432 provides for the recovery of damages for the I.R.S.’s failure to give a timely release of a federal tax lien and Section 7433 provides for the recovery of damages for the I.R.S.’s intentional or reckless disregard for the provisions of the Internal Revenue Code or regulations promulgated thereunder.
The government filed a motion for summary judgment claiming the district court lacked jurisdiction over the suit because Information Resources had failed to exhaust its administrative remedies. On January 28,1991, the district court granted the government’s motion for summary judgment. It is this dismissal from which Information Resources now appeals.
II. 26 U.S.C. § 7432
Information Resources filed suit pursuant to 26 U.S.C. § 7432 for the LR.S.’s failure to release a federal tax lien within the requirements of timeliness:
“(a) If any officer or employee of the Internal Revenue Service knowingly, or by reason of negligence, fails to release a lien under section 6325 on property of the taxpayer, such taxpayer may bring a civil action for damages against the United States in a district court of the United States.
(b) In any action brought under subsection (a), upon a finding of liability on the part of the defendant, the defendant shall be liable to the plaintiff in an amount equal to the sum of—
(1) actual, direct economic damages sustained by the plaintiff which, but for the actions of the defendant, would not have been sustained, plus
(2) the costs of the action.”
26 U.S.C. § 7432 (1988). Section 7432, however, requires exhaustion of all administrative remedies prior to the filing of a lawsuit. The administrative remedies for release of a tax lien are detailed in 26 C.F.R. § 401.6325-1 (1983). A request must be submitted to the district director of the district in which the notice of lien was filed, and it must be marked for the attention of the Chief, Special Procedures Function. 26 C.F.R. § 401.6325-l(f). The request must contain (1) the name and address of the taxpayer; (2) a copy of the notice of federal tax lien; and (3) the grounds upon which the issuance of a release is sought. Id.
Information Resources does not claim that it followed the requisite procedures precisely. David Salinas sent a letter to the I.R.S. requesting the release of the erroneously filed lien, but the letter was not sent to the appropriate person. It also was unaccompanied by the necessary supporting materials. The company does allege, however, that it has constructively exhausted the administrative remedies, and to exhaust the remedies now would be futile. Exhausting the administrative remedies would entail obtaining the release of a lien which has already been released.
Information Resources cites numerous cases establishing exceptions to the exhaustion doctrine. Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir.1985) (“Exceptions to the exhaustion requirement are appropriate where the available administrative remedies either are unavoidable or are wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action”); Coit Independence Joint Venture v. Federal Savings and Loan Insurance Corporation, 489 U.S. 561, 109 S.Ct. 1361, 1375, 103 L.Ed.2d 602 (1989) (“Administrative remedies that are inadequate need not be exhausted”); Spannaus v. U.S. Dept. of Justice, 824 F.2d 52, 58 (D.C.Cir.1987) (“Once constructive exhaustion [of administrative remedies] occurs, any available administrative appeal— i.e. actual exhaustion—becomes permissive in the sense in which the term is used here; the requester may pursue it, but his failure to do so does not bar a lawsuit”).
Although Information Resources is correct as to the numerous exceptions which the courts have applied to the doctrine of exhaustion of administrative remedies, the cases it cites apply only to the judicially created doctrine. There is a distinct difference between statutorily mandated exhaustion of administrative remedies and the judicially created doctrine of exhaustion of administrative remedies. See Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 2467, 45 L.Ed.2d 522 (1975); Power Plant Division, Brown & Root, Inc. v. Occupational Safety and Health Review Commission, 673 F.2d 111, 115 (5th Cir. Unit B 1982) (“[A]s the Supreme Court reasoned concerning the analogous statutory requirement of a final agency decision, the statutory codification of the agency objection requirement distinguishes the requirement from the classical exhaustion doctrine”).
While courts may exercise discretion in applying the judicially created doctrine of exhaustion, such discretion is severely limited with respect to a statutory exhaustion requirement because failure to exhaust deprives courts of jurisdiction. Townsend v. U.S. Department of Justice I.N.S., 799 F.2d 179 (5th Cir.1986) (“When exhaustion is statutorily mandated, the requirement is jurisdictional”); Central States Southeast and Southwest Areas Pension Fund v. T.I.M.E.-DC, Inc., 826 F.2d 320, 326-27 (favorably quoting the Townsend case). This circuit, for example, has expressly disavowed the futility exception with respect to statutory exhaustion. Power Plant Division, Brown & Root v. Occupational Safety and Health Review Commission, 673 F.2d at 115.
An exception to a statutorily mandated exception requirement, however, does exist, and it is applicable to the present facts. In Ramirez-Osorio v. I.N.S., 745 F.2d 937, 939 (5th Cir.1984), we held that “exhaustion is not required when administrative remedies are inadequate.” In the present case, administrative remedies are inadequate because the lien has already been released. Although the administrative procedure in question is normally adequate, it has been rendered inadequate by the I.R.S. itself. Had the I.R.S. truly believed it was mandatory that the administrative procedures be followed precisely, it should not have released the lien until Information Resources followed the proper procedures. Information Resources did not intentionally disregard the administrative process. In fact, it contacted Sher-ene Johnson of the I.R.S. in an attempt to ascertain the proper procedures to follow. While Information Resources appears to have acted in good faith, it is questionable whether the I.R.S. similarly acted in good faith. Although Information Resources’ request for release of the liens was sent to the wrong person, it is difficult to understand why it still took the I.R.S. over five months to release the liens. Note, however, that Information Resources may not be fully excused for utilizing the wrong procedures. Any potential damages for the I.R.S.’s failure to make a timely release of the lien may be diminished by Information Resources’ pursuit of the wrong procedures.
We appreciate the importance of the exhaustion requirement and its purpose of preserving the integrity of the administrative process, and we will excuse the exhaustion requirement only in extraordinary circumstances. This case, however, presents just such a circumstance. Requiring Information Resources to exhaust the administrative procedures would be a useless formality, and the law does not require a party to pursue a useless formality.
A decision to the contrary would allocate to the I.R.S. a power which would be subject to abuse. If we required Information Resources to obtain a release of a lien which has previously been released, this would allow the I.R.S. to release liens in an unorthodox manner, and if a party later brought suit, the I.R.S. could then require them to expend time and money having the lien released through the proper administrative procedures. We do not insinuate that this is what the I.R.S. did. But it is at least passing strange that after the I.R.S. is on record as apologizing for its error in filing the liens it continues to demand a useless procedure to remove them. We do suggest that forcing Information Resources to exhaust this useless procedure, which has no available remedy, would provide the I.R.S. with the potential for abuse.
The purpose of administrative procedures is to allow an agency to grant relief. The administrative procedures in question enable a party to have a lien released. Because the I.R.S. has already granted the relief provided by the administrative procedures, they now provide no remedy at all. The district court, therefore, erred in granting the summary judgment as to Section 7432 for failure to exhaust administrative remedies.
III. 26 U.S.C. § 7433
Information Resource also brought suit pursuant to 26 U.S.C. § 7433. Section 7433, like Section 7432, requires that all administrative procedures be exhausted prior to filing a lawsuit. The government again alleges that the administrative remedies have not been exhausted because the lien in question was not properly released. Information Resources, however, is suing the government under Section 7433, not because of delay in the removal of the lien, but, instead, because Brooks, in filing the lien, recklessly or intentionally disregarded 26 U.S.C. §§ 6321 and 6331. Information Resources claims that it did not refuse to pay its taxes after a demand by the I.R.S. Instead, it allegedly made arrangements with Brooks to pay the full amount. Thus, by filing a lien on the company’s property after the taxes had already been paid, Brooks, according to Information Resources, recklessly or intentionally violated the Code.
The government contends that Information Resources’ complaint alleges damages only due to failure to release the lien, not damages due to the filing of the lien. The government asserts that this means Sections 6321 and 6331 are not at issue in this case. While it is true that the company’s complaint did not specifically mention either Section 6321 or Section 6331, the complaint did set out facts sufficient to give the government fair notice of a claim under Section 7433 based on alleged violations of Sections 6321 and 6331.
Asserting facts sufficient to give the government notice is all that is required in the federal system. O’Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir.1985) (“[W]e remain faithful to the liberal notice-pleading requirement of the Federal rules and note that often the litigants may plead generally and discover the precise factual basis for their claim through equally liberal pretrial discovery procedures”); Jamieson By and Through Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir.1985) (“The policy of the federal rules is to permit liberal pleading and amendment, thus facilitating adjudication on the merits while avoiding an excessive formalism”); Rathborne v. Rathborne, 683 F.2d 914, 917 n. 8 (5th Cir.1982) (“[A] complaint need not correctly categorize the legal theories giving rise to the claims; it must merely allege facts upon which relief can be granted”). Information Resources’ complaint is sufficient to include a claim under Section 7433 based on violations of 26 U.S.C. §§ 6321 and 6331 for improper filing of a lien.
The I.R.S. argues that even if the complaint includes violations of Sections 6321 and 6331, the I.R.S. did not violate either of those sections. Whether those sections were violated, as well as whether Information Resources reached an agreement with Brooks as to payment of its obligations, are questions of fact to be decided by a trial court.
We now turn to whether Information Resources has properly exhausted its administrative remedies under Section 7433. Because Information Resources is suing for damages caused by the erroneous filing of a lien, as opposed to damages caused by non-removal of the lien, it is unnecessary for the lien to be removed through administrative procedures prior to the filing of this suit. The damages claimed were caused by filing the lien, not by maintaining it. Thus, 26 C.F.R. 401.-6325.1 is not a jurisdictional prerequisite to this cause of action under 26 U.S.C. § 7433. Furthermore, we can find no administrative remedies which Information Resources needed to exhaust prior to filing of this suit. The IRS was not being asked to take any remedial action, the core of any administrative process. A private cause of action for damages under 26 U.S.C. § 7433 was Information Resources’ only remedy for intentional or reckless filing of an erroneous lien. Therefore, the district court does have jurisdiction to hear this claim.
IV. CONCLUSION
Although exhaustion of administrative remedies is statutorily mandated, the present case beyond cavil can call forth no administrative remedy at all. Thus, the district court erred in granting the summary judgment as to claims under 26 U.S.C. § 7432 and 26 U.S.C. § 7433. We reverse the summary judgment granted by the district court.
REVERSED.
. "A judgment for damages shall not be awarded under subsection (b) unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service." 26 U.S.C. § 7432(d)(1) (1988).
. It should be noted that subsequent to the events at issue in this case, administrative remedies with respect to the erroneous filing of notice of a federal tax lien were promulgated and are contained in 26 C.F.R. § 301.6326-1T (1989). Information Resources claims that because new remedies were promulgated, the old remedy — i.e. 26 C.F.R. § 401.6325-1 — was necessarily inadequate. This argument is without merit. The administrative remedies promulgated at the time the liens in question were filed are the remedies which Information Resources must exhaust.
."(a) If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. Except as provided in section 7432, such civil action shall be the exclusive remedy for recovering damages resulting from such action.
(b) In any action brought under subsection (a), upon a finding of liability on the part of the defendant, the defendant shall be liable to the plaintiff in an amount equal to the lesser of $100,000 or the sum of—
(1) actual, direct economic damages sustained by the plaintiff as a proximate result of the reckless or intentional actions of the officer or employee, and
(2) the costs of the action.” 26 U.S.C. § 7433 (1988).
. “A judgment for damages shall not be awarded under subsection (b) unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service.” 26 U.S.C. § 7433(d)(1) (1988).
. 26 U.S.C. § 6321 (1986) provides: "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 upon all property and rights to property, whether real or personal, belonging to such person.” Under Section 6331, if the taxpayer’s neglect or refusal to pay the tax persists for ten days after notice and demand, the IRS may levy upon his property in order to collect the tax. 26 U.S.C. § 6331 (1988).
. In the section of the Plaintiff s Complaint entitled “I.R.C. Section 7433 Liability,” Taxpayer makes the following assertions:
4.02. In connection with the collection of Plaintiff, IRI’s 941 Tax liability for the tax period ending 12/31/88, Defendant caused a Federal Tax Lien to be filed as hereinbefore alleged and more fully set forth.
4.03. Defendant caused such Federal Tax Lien to be filed on April 25, 1988.
4.04. Defendant was not authorized to file such a Federal Tax Lien for the reason that Plaintiff had already satisfied the full amount of the liability at a time prior to the filing of the Federal Tax Lien.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_usc1sect
|
78
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
L.P. ACQUISITION COMPANY, et al., Plaintiffs-Appellants, v. Carl L. TYSON, Acting Director of the Corporation and Securities Bureau of the Department of Commerce of the State of Michigan, et al., Defendants-Appellees.
No. 85-1640.
United States Court of Appeals, Sixth Circuit.
Argued Aug. 20, 1985.
Decided Aug. 26, 1985.
Contie, Circuit Judge, concurred in part, dissented in part, and filed an opinion.
John C. Elam, Vorys, Sater, Seymour & Pease, Columbus, Ohio, Michael W. Schwartz, argued, Wachtell, Lipton, Rosen & Katz, New York City, for plaintiffs-appellants.
Diane Sanger, Asst. Gen. Counsel, S.E.C., Washington, D.C., for amicus curiae (SEC).
William Saxton, Butzel, Long, Gust, Klein & Van Zile, Phillip Kessler, argued, Detroit, Mich., Joe Sutton argued, (Kelley, Ross & Tyson) Asst. Atty. Gen., Lansing, Mich., for defendants-appellees.
Before MERRITT, MARTIN and CON-TIE, Circuit Judges.
PER CURIAM.
Plaintiffs L.P. Acquisition Company and L. P. Media, Inc. appeal from a judgment of the district court denying their motion for a preliminary injunction and dismissing their complaint challenging the constitutionality of the Michigan Take-Over Offers Act, M. C.L.A. §§ 451.901-917, and the Michigan Uniform Securities Act, M.C.L.A. §§ 451.-501-818, pursuant to 28 U.S.C. §§ 1331(a), 1337(a), 2201. We reverse.
I.
On July 29, 1985, plaintiffs L.P. Acquisition Company and L.P. Media, Inc. (hereinafter L.P.) filed a motion in the United States District Court for the Eastern District of Michigan against defendants Carl L. Tyson, Acting Director of the Corporation and Securities Bureau of the Department of Commerce of the State of Michigan; Frank J. Kelley, Attorney General of the State of Michigan; Doug Ross, Director of the Department of Commerce of the State of Michigan; and the Evening News Association (ENA), a Michigan corporation, seeking to enjoin defendants from enforcing M.C.L.A. §§ 451.501-818, et seq., 451.901-917.
The first amended complaint, filed August 6, 1985, alleged that L.P. Acquisition and L.P. Media were incorporated on July 26, 1985 for the purpose of acquiring ENA, and that L.P. Acquisition, a Delaware corporation, is a wholly owned subsidiary of L.P. Media. The complaint alleged that L.P. Acquisition had commenced a cash tender offer for any and all of the approximately 450,000 shares of ENA from ENA’s 333 shareholders for $1,000 per share. An examination of the tender offer transmitted to shareholders reveals that the offer was not conditioned upon any minimum number of shares being tendered. The complaint further alleged that about half of the shareholders were Michigan residents with about half of the shares being owned by Michigan residents. The offer was due to expire on August 23, 1985. L.P. also alleged that “ENA shares are not listed on any registered securities exchange or widely traded on the over-the-counter market.”
In the complaint, L.P. admitted that it had not complied with all the provisions of Michigan’s securities laws, but had filed copies of the tender offer documents with the Michigan Department of Commerce without prejudice to its claims that the Act is unconstitutional. In Count I, L.P. alleged that the Michigan statute violated the Commerce Clause, U.S. Constitution Art. I § 8 cl. 3. Specifically, L.P. cited the requirement that L.P. file a registration statement with respect to the tender offer, the fact that the statute empowers Michigan officials to enjoin the sale and purchase of securities pursuant to the terms of the tender offer, and the' expense incurred by L.P. in litigating the applicability of the statute. L.P. asserted that the statute was a direct burden on the free flow of interstate commerce to the extent it hindered the sale of securities by a non-Michigan seller to a non-Michigan buyer, and that the statute indirectly burdened interstate commerce because the burdens on interstate commerce outweighed the benefits the state sought from the statute. In Count II, L.P. asserted that the Michigan statute violated the Supremacy Clause to the extent that it delayed the purchase and sale of securities past the 20-day minimum period established by 17 C.F.R. § 240.14e-1(a), promulgated pursuant to 15 U.S.C. § 78n(e). In Count III, L.P. challenged the M.C.L.A. § 451.808, as unconstitutional as applied to interstate transactions, and, in Count IV, alleged that ENA had violated 15 U.S.C. § 78n(e).
L.P. sought a temporary restraining order, a preliminary injunction, and a permanent injunction restraining defendants from attempting to enforce the Michigan statutes and enjoining ENA from making further misleading statement about the L.P. tender offer. L.P. also sought a declaratory judgment that the statutes are unconstitutional as applied. The motion for a temporary restraining order was accompanied by an affidavit from L.P. Media counsel Grover C. Cooper representing that application of the Michigan statute would delay FCC approval for the transfer of control of the ENA licenses as parent of a number of FCC media facilities.
On August 7,1985, 616 F.Supp. 1186, the district court entered judgment denying in-junctive relief and dismissing the complaint. The court order represented that “[t]he state defendants have indicated that although they are prepared to enforce the Michigan acts as to L.P.’s offer, they will await the decision of this court. L.P. represents that ENA will surely seek to enforce the Michigan acts.” The court disposed of L.P.’s Supremacy Clause and fraud claims (Counts II and III) by finding that 15 U.S.C. § 78n(e) of the Williams Act only applied to registered securities. The court held that
to interpret § 14(e) broadly would render an absurd result by extending coverage of its provisions to foreign and totally intrastate tender offers, as well as those made for the securities of closely held corporations. That Congress would intend for only one subsection of an extensive regulatory scheme to have this cosmic scope defies logic. The court would suggest that Congress’ choice of the phrase “any tender offer” was intended to refer to the form tender offers take— whether for cash or securities, for all or a portion of the outstanding shares, and the type of transmittal through which the tender offer is made.
(footnote omitted). With respect to L.P.’s Commerce Clause challenge, the court held:
The protection of resident shareholders of a Michigan corporation is a legitimate state interest. This is particularly true in the absence of any applicable federal regulation and under the facts of this case. The ENA is a closely held corporation with 50 percent of its shares and shareholders located in Michigan. The corporation owns a major newspaper that impacts upon the entire state and two radio stations in Michigan’s largest city. Each of these factors underscore the need for regulation of a hostile tender offer. These state interests outweigh the incidental burden the application of the Take Over Act will have an interstate commerce.
(footnote omitted). The court found further support in its findings that 17 C.F.R. § 240.14e-l(a) is inapplicable to the ENA unregistered securities and that Congress, in enacting the Williams Act, had not changed the provisions of 15 U.S.C. § 78bb(a) which reserved some regulatory power for the states.
On August 7, 1985, L.P. moved for an expedited appeal and a preliminary injunction pending appeal, and on August 20, 1985, we heard argument in the case. L.P. appealed pursuant to 28 U.S.C. §§ 1291, 1292(a)(1). At oral argument, counsel for L.P. represented that the tender offer had been increased to $1,250 per share and that the offer would expire August 30, 1985. Counsel also represented that this offer was subject to the condition that none of the tendered shares would be purchased unless more than half of the shares were tendered.
II.
Prior to consideration of the constitutional issues argued before us, we review the scope of the statute in issue. M.C.L.A. § 451.903(4) defines “target company” as an issuer of securities which may be the subject of a take-over offer. The statute defines “take-over offer” as an offer directed at an issuer who either is “organized under the laws of this state” or has “its principal place of business in this state” and where acceptance of the offer would make the offeror “a beneficial owner of more than 5% of the outstanding shares of the class of the security offered or acquired.” M.C.L.A. § 451.904(1). However, excluded from the definition of “take-over offer” are (1) “an offer made to not more than 15 persons in this state during any 12 consecutive months,” (2) “an offer made by a person other than an issuer which is initiated or approved by the board of directors of the issuer of the security which is the subject of the offer if the offer is made when a take-over offer with respect to the security by another person is not effective or was not publicly disclosed under section 3,” and (3) an offer “[b]y the issuer of the security.” Section 451.-904(2)(a), (d), (f).
An offer may not be made unless it is “effective” or “exempt.” Section 451.-905(1). An offer becomes “effective” 10 days after the offeror files a registration statement with the department of commerce, delivers the statement to the target company, and publicly discloses the terms of the offer. Section 451.905(3). Once the offer becomes “effective” “it shall remain open for acceptance by the offerees for not less than 60 days.” Section 451.905(2). The effective date is stayed if the administrator, the department of commerce, section 451.902(1), “orders a hearing for an alleged violation of this act.” Section 451.-905(4). The hearing must be held not more than 20 days after filing of the registration statement and a “summary determination” is to be made within 20 days after the hearing. Section 451.907(1), (2), (4). “The administrator may summarily order the delay of the effective date of the offer if the administrator determines that the registration statement ... does not provide full disclosure to offerees of all material information concerning the offer.” Section 451.908(3).
The contents of the registration statement required by the Michigan act are virtually identical to the information required to be disclosed to shareholders by the Williams Act, 15 U.S.C. § 78n(d). M.C.L.A. § 451.908(1). The statute further contains anti-fraud provisions which are identical to the anti-fraud provisions of the Williams Act, 15 U.S.C. § 78n(e). M.C.L.A. § 451.-910. See also M.C.L.A. § 451.911(3)(a).
The statute prohibits offerors from acquiring shares from residents of the state while administrative proceedings are pending, M.C.L.A. § 451.911(2), and provides that “[a]n offeror may not make a takeover offer which is not made to security holders in this state on substantially the same terms as the offer is made to security holders outside this state,” section 451.-911(1). With respect to exemptions, the statute provides:
The administrator may by rule or order exempt from this act takeover offers that it determines are not made for the purpose, or do not have the effect of, changing or influencing the control of a target company or where compliance with this act is not necessary for the protection of the offerees, and may similarly exempt persons from the filing of registration statements under this act.
M.C.L.A. § 451.912(1).
The statute empowers the administrator to issue cease and desist orders and to enforce those orders in state court. M.C. L.A. § 451.914. The statute also allows the target company to seek injunctive relief with respect to violations of the statute. Section 451.917(2). In this case, of course, neither the administrator nor the target company has taken action pursuant to the statute, but have announced their intention to do so should the statute pass constitutional muster.
III.
Our review of a district court’s denial of a preliminary injunction is limited to determining whether the district court abused it discretion. Christian Schmidt Brewing v. G. Heileman Brewing, 753 F.2d 1354, 1356 (6th Cir.1985). “A district court abuses its discretion ... when it improperly applies the law____” Id.
There are four factors to be considered in determining whether the grant or denial of a preliminary injunction was an abuse of discretion: (a) the likelihood of success on the merits of the action, (b) the irreparable harm which could result without the relief requested, (c) the impact on the public interest, and (d) the possibility of substantial harm to others.
Id.; Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 564 (6th Cir.1982). “To show a likelihood of prevailing on the merits, the appellant must show the likely existence of a constitutional violation casually related to the result sought to be enjoined.” Id. at 565. Accordingly, we consider in turn L.P.’s likelihood of success in its challenges to the Michigan statute.
A.
Article I § 8, cl. 3 of the U.S. Constitution provides that “[t]he Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Of course, “[i]n the absence of conflicting federal legislation, the States retain authority under their general police powers to regulate matters of ‘legitimate local concern,’ even though interstate commerce may be affected.” Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 36, 100 S.Ct. 2009, 2015, 64 L.Ed.2d 702 (1980). The Court has applied a rule of per se invalidity to state legislation which effects simple economic protectionism. Id. However, where the challenged legislation indirectly burdens interstate commerce, a different rule applies.
Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits____ If a legitimate local purpose is found, then the question becomes one of degree. ■And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.
Id. at 36-37, 100 S.Ct. at 2015, 2016 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970)); Metropolitan Life Ins. Co. v. Ward, — U.S.-,-, 105 S.Ct. 1676, 1683, 84 L.Ed.2d 751 (1985); Bacchus Imports, Ltd. v. Dias, — U.S.-, 104 S.Ct. 3049, 3055, 82 L.Ed.2d 200 (1984). “The principal focus of the inquiry must be the practical operation of the statute, since the validity of state laws must be judged chiefly in terms of their probable effects.” Lewis, 447 U.S. at 37, 100 S.Ct. at 2016.
We believe that the Michigan statute is not violative of the Commerce Clause because the state is regulating in an area reserved to the states by federal securities legislation. Further, even absent the Congressional authorization to regulate, the benefits arising from the state’s promotion of its legitimate interest in protecting resident shareholders outweighs the burdens the statute places on interstate commerce.
15 U.S.C. § 78bb(a) provides in pertinent part that “[njothing in this chapter shall affect the jurisdiction of the securities commission ... of any State over any security or any person insofar as it does not conflict with the provisions of this chapter or the rules and regulations thereunder.” It is clear that Congress “ ‘may redefine the distribution of power over interstate commerce’ by ‘permitting] the states to regulate the commerce in a manner which would otherwise not be permissible.’ ” South-Central Timber Development, Inc., 467 U.S. 82, 104 S.Ct. 2237, 2240, 81 L.Ed.2d 71 (1984) quoting Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed.2d 1915 (1945); New Eng land Power Co. v. New Hampshire, 455 U.S. 331, 340-41, 102 S.Ct. 1096, 1101, 71 L.Ed.2d 188 (1982); Lewis, 447 U.S. at 44, 100 S.Ct. at 2019, 2020. While the Court has generally required an express statement of Congressional policy to allow otherwise impermissible regulation of interstate commerce, “[tjhere is no talismanic significance to the phrase ‘expressly stated’, however; it merely states one way of meeting the requirement that for a state regulation to be removed from the reach of the dormant Commerce Clause, congressional intent must be unmistakably clear.” South-Central Timber, 467 U.S. at-, 104 S.Ct. at 2242.
This is not a case where the state seeks to regulate tender offers for which the Congress has already provided disclosure requirements nor has Congress “remained completely silent on the subject” of state regulation. Northeast Bancorp, Inc. v. Board of Governors, — U.S. -, 105 S.Ct. 2545, 2554, 86 L.Ed.2d 112 (1985) (“When Congress so chooses, state actions which it plainly authorizes are invulnerable to constitutional attack under the Commerce Clause.”). The parties admit that the securities at issue here are not registered, and, therefore, the disclosure requirements of 15 U.S.C. § 78n(d) are inapplicable. The Court has indicated that 15 U.S.C. § 78bb(a) indicates “the intent of Congress that state law continues to apply where the Act itself does not.” Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 138 n. 16, 94 S.Ct. 383, 395 n. 16, 38 L.Ed.2d 348 (1973); Leroy v. Great Western United Corp., 443 U.S. 173, 182, 99 S.Ct. 2710, 2716, 61 L.Ed.2d 464 (1979) (“That section [15 U.S.C. § 78bb(a)J was plainly intended to protect, rather than to limit, state authority.” (footnote omitted)). Justice Powell’s concurring opinion in Edgar v. MITE Corp., 457 U.S. 624, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982) indicates that the interplay between the Commerce Clause and the Williams Act “leaves some room for state regulation of tender offers.” Id. at 646, 102 S.Ct. at 2642. It is clear that Justice Powell was referring to situations such as this in which an out-of-state offeror seeks to takeover an in-state corporation. Justice Powell commented that “[ijnevitably there are certain adverse consequences in terms of general public interest when corporate headquarters are moved away from a city and State. ” Id. at 646, 102 S.Ct. at 2643 (footnote omitted) (emphasis added). Accordingly, we believe that through the Williams Act and 15 U.S.C. § 78bb(a) Congress intended to reserve for the states regulation of securities and tender offers which Congress clearly declined to regulate.
Alternatively, we find no undue burden on interstate commerce in violation of the Commerce Clause. Although appellants argue that the Michigan statute impermis-sibly exempts the issuer from the statute’s disclosure requirements, we perceive no discrimination that has characteristically invalidated state statutes. The statute does not favor Michigan offerors over foreign offerors and only prohibits as offeror from acquiring the securities of state residents during the pendency of state proceedings pursuant to the statute. M.C.L.A. § 451.-911(2). Accordingly, we do not perceive the statute as constitutionally infirm on the basis of impermissible protectionist intent or effect.
In balancing the burdens and benefits of the statute pursuant to the standards set out in Pike, supra, we are guided by the decisions in MITE and Martin-Marietta. In Martin-Marietta, this court held the same Michigan statute unconstitutional as applied to a tender offer subject to the disclosure requirements of 15 U.S.C. § 78n(d). Following MITE, the court found the statute unconstitutional to the extent that it interfered with the timing of a tender offer under the Williams Act and to the extent that the state attempted to compel revision of the offer. 690 F.2d at 565. With respect to the burdens that the Michigan statute places on interstate commerce, we are bound by the characterizations of Martin-Marietta. The court found commerce burdened by the registration statement requirement, and the cost and time of litigation under the statute, and, due to the conditional nature of-the tender offer, the statute defeated “the tender offers of residents from other states where the tendered shares owned by Michigan residents are needed to provide, sufficient tendered shares to satisfy the tender offer.” Id. at 566-67. In this case, the parties represent that about half of the ENA shares are owned by Michigan residents. While the basis for this belief is not clear, there, of course, is nothing impeding any shareholder from either changing residency or selling his shares in the course of this litigation. Assuming, however, that the 50/50 estimate is accurate, L.P. would be required to obtain tenders from all of the shares of non-Michigan shareholders. Clearly, this places some burden on interstate commerce. See MITE, 457 U.S. at 643, 102 S.Ct. at 2641.
However, the weight of the benefits in this case differs from MITE and Martin-Marietta. While we recognize that “there exists no legitimate state interest in the protection of non-resident shareholders,” Martin-Marietta, 690 F.2d at 566, both MITE and Martin-Marietta, unlike the pending case, involved tender offers subject to section 14(d) of the Williams Act. Accordingly, in the absence of the federal disclosure requirements, the state’s interest in protecting resident shareholders is enhanced. In MITE, the Court found that the benefits provided by the Illinois statute to resident shareholders were speculative because “the Williams Act provides these same substantive protections,” and the requirements of the Illinois statute “which go beyond those mandated by the Williams Act and the regulations pursuant to it may not substantially enhance the shareholders’ ability to make informed decisions.” 457 U.S. at 644-45, 102 S.Ct. at 2642. In contrast, the benefits to resident shareholders from the Michigan statute are great since the disclosure requirements of the Williams Act are inapplicable in this case. Therefore, the state statute, unlike the statutes in MITE and Martin-Marietta, provides for disclosure in the first instance rather than merely enhancing the foundation of federal disclosure mandates. Justice Powell’s concurrence eloquently articulates the state’s compelling interest in protecting its residents.
The corporate headquarters of the great national and multinational corporations tend to be located in the large cities of a few States. When corporate headquarters are transferred out of a city and State into one of these metropolitan centers, the State and locality from which the transfer is made inevitably suffer significantly. Management personnel — many of whom have provided community leadership — may move to the new corporate headquarters. Contributions to cultural, charitable, and educational life — both in terms of leadership and financial support — also tend to diminish when there is a move of corporate headquarters.
Id. at 646, 102 S.Ct. at 2642, 2643. Accordingly, we hold that, under the facts of this case, the Michigan statute does not violate the Commerce Clause.
B.
Appellants argue that under the Supremacy Clause, Section 14(e) of the Williams Act, 15 U.S.C. § 78n(e), preempts the timing provisions of the Michigan statute. Specifically, appellants rely on 17 C.F.R. § 240.14e-l(a) and the policy of avoiding delay in order to maintain a balance of power between the offeror and the target company.
A state statute is preempted by federal law where (1) “compliance with both federal and state regulations is a physical impossibility,” Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or (2) when “the purpose of the federal statute would to some extent be frustrated by the state statute,” Colorado Anti-Discrimination Commission v. Continental Air Lines, Inc., 372 U.S. 714, 722, 83 S.Ct. 1022, 1026, 10 L.Ed.2d 84 (1963). “Congressional enactments which do not expressly exclude state legislation in the field nevertheless override state laws with which they might conflict.” National City Lines, Inc. v. LLC Corp., 687 F.2d 1122, 1128 (8th Cir.1982).
15 U.S.C. § 78n(e) provides:
It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer or request or invitation for tenders, or any solicitation of security holders in opposition to or in favor of any such offer, request, or invitation. The Commission shall, for the purposes of this subsection, by rules and regulations define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative.
17 C.F.R. § 240.14e-l(a) provides:
As a means reasonably designed to prevent. fraudulent, deceptive or manipulative acts or practices within the meaning of section 14(e) of the Act, no person who makes a tender offer shall:
(a) Hold such tender offer open for less than twenty business days from the date such tender offer is first published or sent or given to security holders: Provided, however, That this paragraph (a) shall not apply to a tender offer by the issuer of the class of securities being sought which is not made in anticipation of or in response to another person’s tender offer for securities of the same class.
Of course, “properly promulgated, substantive agency regulations have the ‘force and effect of law.’ This doctrine is so well established that agency regulations implementing federal statutes have been held to pre-empt state law under the Supremacy Clause.” Chrysler Corp. v. Brown, 441 U.S. 281, 295-96, 99 S.Ct. 1705, 1714, 60 L.Ed.2d 208 (1979) (footnotes omitted).
Preliminarily, the district court found, and appellees argue, that 14(e) is not applicable to the tender offer at issue in this case, but is only applicable to registered securities. For several reasons, we reject this conclusion. First, the plain language of the statute refers to “any tender offer.” (Emphasis added). Second, as the remaining subsections of 15 U.S.C. § 78n demonstrate, Congress clearly knew how to limit the applicability of legislation to a particular class of tender offers when it so intended. Third, the Securities and Exchange Commission, the agency with expertise in the area, has found that “[t]he broad anti-fraud provisions of Section 14(e) are applicable to any tender offer.” Securities Act Release No. 6022 (February 5, 1979). Fourth, the Supreme Court has described 14(e) as “a general antifraud provision,” MITE, 457 U.S. at 633 n. 8, 102 S.Ct. at 2635 n. 8, and the Third Circuit has found that “[ujnlike the proxy regulations of section 14(a) and the disclosure requirements of 14(d), the anti-fraud proscriptions contained in section 14(e) apply to any class of security.” E.H.I. of Florida, Inc. v. Insurance Co. of North America, 652 F.2d 310, 315 (3d Cir.1981). Accordingly, we conclude that the district court erred in construing 14(e) as inapplicable to this case.
In MITE, a plurality of the Court found that “Congress sought to protect the investor not only by furnishing him with the necessary information but also by withholding from management or the bidder any undue advantage that could frustrate the exercise of an informed choice.” 457 U.S. at 634, 102 S.Ct. at 2636. Further, “the takeover bidder should be free to move forward within the time frame provided by Congress.” Id. The plurality found that the 20-day pre-commencement notification provision furnishes “incumbent management with a powerful tool to combat tender offers,” and, therefore, “frustrates the objectives of the Williams Act.” Id. at 635, 102 S.Ct. at 2637. Further, the plurality found that “the hearing provisions of the Illinois Act frustrate the congressional purpose by introducing extended delay into the tender offer process.” Id. at 637, 102 S.Ct. at 2638. “Delay has been characterized as ‘the most potent weapon in a tender-offer fight.’ ” Id. at n. 12. Further, the SEC has found, in establishing a 20-day minimum period for which offers should be held open, that national uniformity in this area is desirable. Securities Act Release No. 6022 (February 5, 1979). The Eighth Circuit has likewise found that “[s]tate statutes which can be used to unduly delay tender offers are preempted by the Williams Act.” National City Lines, 687 F.2d at 1131.
The Michigan statute, much like the Illinois statute in MITE, frustrates the congressional purpose of maintaining a balance between the target company and the offeror. The pre-commencement notification provision, the hearing scheme, and the 60-day minimum period for holding the offer open all impermissibly delay the offer and aid management in fighting off the take-over. This frustrates the purposes of the Williams Act as expressed in 15 U.S.C. § 78n(e) and 17 C.F.R. § 240.14e-l(a). Accordingly, to the extent these procedures conflict .with the 20-day minimum period of Rule 14e-l(a), they are preempted by federal law. We do not hold that a state might never establish a hearing scheme to inquire into the adequacy of an offeror’s disclosures. However, whatever scheme a state devises must operate within the confines of congressional intent expressed through the federal securities laws and regulations. Accordingly, we find that appellants have established a likelihood of success on the merits.
Our consideration of the remaining elements required for a grant of injunctive relief is largely controlled by our decision in Martin-Marietta. Appellants may suffer irreparable harm because they “are in danger of losing the opportunity, which the evenhanded operation of the Williams Act guarantees them, to attempt to acquire [ENA] stock. Such loss could not be compensated by money damages.” Martin-Marietta, 690 F.2d at 568. Further, balancing the irreparable harm threatened to L.P. against the harm potentially suffered by defendants favors the granting of in-junctive relief. The state has no legitimate interest in enforcing laws which frustrate federal securities regulation. Finally, the public interest would best be served by granting relief since “the public has no interest in the enforcement of laws in an unconstitutional manner.” Id.
Accordingly, we reverse the judgment of the district court and remand for entry of preliminary injunctive relief consistent with this opinion. We also vacate the district court’s dismissal of L.P.’s complaint seeking permanent injunctive relief, a declaratory judgment, and injunctive relief against ENA for violations of 15 U.S.C. § 78n(e), and remand the case for further proceedings.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15? Answer with a number.
Answer:
|
sc_jurisdiction
|
B
|
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.
CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. v. ILLINOIS et al.
No. 12.
Argued November 12, 1957.
Decided January 13, 1958.
R. K. Merrill argued the cause for appellant in No. 12. With him on the brief were W. J. Quinn and Edwin R. Eckersall.
Solicitor General Rankin submitted on brief for the United States, appellant in No. 27.
Charlie H. Johns, Jr. argued the cause for the Interstate Commerce Commission, appellant in No. 28. With him on the brief was Robert W. Ginnane.
Harry R. Begley, Special Assistant Attorney General, argued the cause for the State of Illinois and the Illinois Commerce Commission, appellees. With him on the brief were Latham Castle, Attorney General, and Elmer M. Walsh, Jr., Assistant Attorney General.
S. Ashley Guthrie argued the cause for the Milwaukee Road Commuters’ Association, appellee. With him on the brief were Henry F. Tenney and Francis D. Fisher.
Together with No. 27, United States v. Illinois et al., and No. 28, Interstate Commerce Commission v. Illinois et al., also on appeals from the same Court.
Mr. Justice Brennan
delivered the opinion of the Court.
The State of Illinois, the Illinois Commerce Commission, and the Milwaukee Road Commuters’ Association, aggrieved by an order of the Interstate Commerce Commission fixing intrastate passenger fares for the Milwaukee Road’s Chicago suburban commuter service higher than the fares authorized by the State Commission, brought this action in the District Court for the Northern District of Illinois, Eastern Division, seeking relief under 28 U. S. C. § 1336. The ICC order, 297 I. C. C. 353, was made under 49 U. S. C. § 13 (4), which authorizes the ICC to prescribe intrastate fares if it finds that “. . . any such . . . [existing intrastate] fare . . . causes . . . any undue, unreasonable, or unjust discrimination against interstate . . . commerce.” The three-judge District Court set aside the order, enjoined its enforcement, and remanded the case to the ICC for further proceedings. 146 F. Supp. 195. The District Court held, inter alia, that the ICC failed to make findings appropriate to show that the existing fares caused undue, unreasonable or unjust discrimination against interstate commerce. The judgment was appealed under 28 U. S. C. § 1253. We noted probable jurisdiction, 352 U. S. 939.
The ICC found that the Milwaukee Road’s 1954 passenger revenues from the Chicago suburban commuter service fell short by $306,038 of meeting the out-of-pocket cost of the service. This was the basis of the conclusion that the existing intrastate fares caused undue discrimination against interstate commerce. To remove this discrimination the ICC prescribed fares to produce $383,000 additional annual revenue, enough to eliminate the determined out-of-pocket loss and to allow $77,000 annually as a contribution to indirect costs and taxes. The question for our decision is whether the District Court properly set aside the ICC order as void for lack of findings necessary to support an order under § 13 (4).
The Chicago suburban commuter service, except for a relatively insignificant exception mentioned below, is entirely an intrastate service. It is provided in two directions from Chicago’s Union Station. One direction, wholly within Illinois, is west from Chicago some 37 route miles to Elgin, Illinois. The other direction is north from Chicago to Walworth, Wisconsin; however, 62 of the 74 route miles in that direction, and 24 of the 26 station stops, are located within Illinois. Total 1954 passenger revenues from this service were $1,796,231 from 4,869,064 passengers. Commuters traveling on commutation and multiple-ride tickets numbered 3,910,526 of this total and accounted for $1,374,261 of the revenue.
Commuter fares of most of the railroads providing commuter service in the Chicago area have been determined, at least since 1950, in joint hearings conducted by the ICC and the State Commission under 49 U. S. C. § 13 (3). 297 I. C. C. 353, 354. On July 24, 1952, however, the Milwaukee Road, instead of filing petitions or schedules with both Commissions, filed a petition with the State Commission only requesting
“authority to discontinue all off-peak Chicago suburban passenger trains and'consolidate certain peak-hour trains and also to increase one-way, round-trip and commutation fares to such extent as will after taking into consideration the economy effected by such discontinuances and consolidation of trains, give respondent sufficient revenues to permit operation of the Chicago 'suburban service without an out-of-pocket loss.” 297 I. C. C., at 355.
The State Commission did not act on the application until 1954. Meanwhile the Milwaukee Road changed the suburban service from a steam to a diesel operation. The State Commission found that the cost savings effected by this change eliminated the out-of-pocket loss and, on November 10, 1954, denied the application. The Milwaukee Road thereupon, in February 1955, petitioned the ICC for relief under § 13 (4).
This case presents once again the problem of adjusting state and federal interests in the regulation of intrastate rates. These intrastate rates are primarily the State’s concern and federal power is dominant “only so far as necessary to alter rates which injuriously affect interstate transportation.” North Carolina v. United States, 325 U. S. 507, 511. Thus, whenever this federal power is exerted within what would otherwise be the domain of state power, the justification for its exercise must “clearly appear.” Florida v. United States, 282 U. S. 194, 212. The statute provides a practical method of minimizing the inevitable irritations inherent in the conflict by requiring the ICC to notify the State whenever there is brought before it any fare imposed by state authority. In addition, the ICC may confer with the state regulatory authority, or may hold joint hearings with the state agency, when the State’s rate-making authority may be affected by the action taken by the ICC. 49 U. S. C. § 13 (3).
The occasion for the exercise of the federal power asserted by § 13 (4) is the necessity for effecting the required contribution by intrastate traffic of its proportionate share of the revenues necessary to pay a carrier’s operating cost and to yield a fair return. When intrastate revenues fall short of producing their fair proportionate share of required total revenues, they work an undue discrimination against interstate commerce, and the ICC may remove the discrimination by fixing intrastate rates high enough reasonably to protect interstate commerce. Illinois Commerce Comm’n v. United States, 292 U. S. 474, 479; Wisconsin R. Comm’n v. Chicago, B. & Q. R. Co., 257 U. S. 563, 586; United States v. Louisiana, 290 U. S. 70, 75. In determining whether an undue revenue discrimination against interstate commerce is caused by intrastate rates, the ICC may consider “among other things, the need, in the public interest, of adequate and efficient railway transportation service and the need of revenues sufficient to sustain such service,” a standard written into 49 U. S. C. § 15a (2). King v. United States, 344 U. S. 254, 264. No formal requirements are prescribed for the findings to be made by the ICC under § 13 (4). United States v. Louisiana, 290 U. S. 70, 80. Reasonable determinations suffice. Florida v. United States, 292 U. S. 1, 9. But the justification for the exercise of this exceptional federal power to interfere with intrastate rates must be made definitely and clearly apparent. Florida v. United States, 282 U. S. 194, 212.
In the instant case the ICC interfered with suburban commuter rates — intrastate rates peculiarly localized in impact upon the Chicago suburban community. In substance, the ICC found that because this single segment of the Milwaukee Road’s intrastate operations in Illinois did not meet out-of-pocket costs, there was an undue discrimination against the road’s interstate operations, without regard to the contribution of other Illinois intrastate revenues, freight or passenger, concerning which both the record and the findings are entirely silent.
We think this is a case where the ICC cannot be sustained in altering intrastate rates merely because the Chicago suburban commuter traffic — of the Milwaukee Road’s total intrastate Illinois traffic, freight and passenger — is not remunerative or reasonably compensatory. Cf. Florida v. United States, 282 U. S. 194; North Carolina v. United States, 325 U. S. 507. The limited and exceptional federal power asserted by § 13 (4) over intrastate rates must be exercised with “scrupulous regard for maintaining the [primary] power of the state in this field.” North Carolina v. United States, 325 U. S. 507, 511. It is of course desirable that each particular intrastate service should as nearly as may be pay its own way and return a profit — but the State Commission, not the ICC, has the responsibility in the first instance to achieve that desired end. Passenger deficits have become chronic in the railroad industry and it has become necessary to make up these deficits from more remunerative services. The ICC has recognized this practical reality of today’s railroading and has changed its rate-fixing policy so that if interstate passenger service inevitably and inescapably cannot bear its direct costs and its share of joint or indirect costs, the ICC feels compelled in a general rate case to take the passenger deficit into account in the adjustment of interstate freight rates and charges. King v. United States, 344 U. S. 254, 261. An equally broad power must be conceded to a state commission in the exercise of its primary authority to prescribe and adjust intrastate rates.
In view of that policy, we do not think that the deficit from this single commuter operation can fairly be adjudged to work an undue discrimination against the Milwaukee Road’s interstate operations without findings which take the deficit into account in the light of the carrier’s other intrastate revenues from Illinois traffic, freight and passenger. The basic objective of § 13 (4), applied in the light of § 15a (2) to this case, is to prevent a discrimination against the carrier’s interstate traffic which would result from saddling that traffic with an undue burden of providing intrastate services. A fair picture of the intrastate operation, and whether the intrastate traffic unduly discriminates against interstate traffic, is not shown, in this case, by limiting consideration to the particular commuter service in disregard of the revenue contributed by the other intrastate services.
A requirement for findings which reflect the commuter service deficit in the totality of intrastate revenues is not a departure from previous holdings of this Court. The precise situation presented by this case has not heretofore been considered by the Court. The previous cases involving Commission orders increasing intrastate rates in the interest of the carrier’s revenue (as distinguished from cases of discrimination against particular persons and localities, see Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342) involved statewide orders raising intrastate rates. In passenger fare cases, ICC orders were sustained on a showing that following general increases in interstate passenger rates, state commissions refused to increase intrastate passenger rates to the same level for what were essentially identical services. Wiscon sin R. Comm’n v. Chicago, B. & Q. R. Co., 257 U. S. 563; New York v. United States, 257 U. S. 591. It was held that the state passenger rates in that circumstance were not producing their fair proportionate share. In North Carolina v. United States, 325 U. S. 507, also a passenger fare case, the ICC order was not sustained because the findings were held to be insufficient. Nonpassenger fare cases in which ICC orders raising intrastate rates were sustained were United States v. Louisiana, 290 U. S. 70; Florida v. United States, 292 U. S. 1; and King v. United States, 344 U. S. 254. The order was not sustained, however, in an earlier Florida case, Florida v. United States, 282 U. S. 194. The only case ostensibly based upon a revenue discrimination caused by a local operation was not a passenger fare case. Illinois Commerce Comm’n v. United States, 292 U. S. 474. Basically the discrimination there complained of, however, was a persons-and-locality discrimination against interstate shippers.
It should also be noted that in King v. United States, supra, the Court adverted to those very factors among the ICC’s findings whose absence in the present case we find to be a fatal defect. The Court there emphasized the ICC finding that the entire intrastate traffic, freight and passenger, constituted a revenue drain upon the carrier’s revenues from interstate traffic. Since the Commission has not in this case found whether or not the commuter rates, viewed in the light of the Illinois intrastate operation as a whole, constitute an undue revenue discrimination against the Milwaukee Road’s interstate operations, the judgment of the District Court in remanding the case to the Commission for further consideration must be affirmed.
The District Court also held that the ICC erred in considering evidence which was not presented by the Milwaukee Road to the State Commission. The evidence in question concerned certain depreciation and maintenance-of-way expenses totaling $258,172, which the ICC took into account in computing out-of-pocket costs. The District Court said:
“If different evidence is to be offered or a different basis of fares is to be urged before the interstate commission, the state commission should have been given a chance to fix fares on the same evidence and the same basis.
“Where a railroad seeks the fixing of higher intrastate rates by the interstate commission after failing in such endeavor before a state commission, § 13 (4) does not contemplate that the state commission is to be considered only a way station in a journey to the interstate commission.” 146 F. Supp. 195, 201, 202.
This holding in effect restricts the ICC in decisions under § 13 (4) to the identical evidence presented by the railroad to the State Commission. So to restrict the ICC’s consideration as to whether intrastate rates work an undue discrimination against interstate commerce might seriously interfere with the Commission’s duty to remove the discrimination to protect the exclusive federal domain of interstate commerce. It is contrary to this Court’s holding in Florida v. United States, 282 U. S. 194. There the State Commission had not affirmatively prescribed the existing rates which the ICC increased. It was urged that until the State Commission did so § 13 (4) granted no power to the ICC to prescribe higher rates. This Court rejected this contention, saying “To hold . . . that there can be no adjustment of intrastate rates by the Interstate Commerce Commission so far as may be needed to protect interstate commerce until the State itself has first 'sat in judgment on the issue of the lawfulness of those intrastate rates’ would be to impose a limitation not required by the terms of the statute and repugnant to the grant of authority.” Id., at 210.
In this case the ICC might more wisely have arranged for joint hearings under § 13 (3) or have deferred action pending an opportunity for the State Commission to consider this evidence. However, nothing in the statute compels either course or denies the ICC the power to determine the question presented by the railroad’s petition, whatever may have been the evidence presented before the State Commission. See North Carolina v. United States, 128 F. Supp. 718, affirmed, 350 U. S. 805; Illinois v. United States, 101 F. Supp. 36, 47, affirmed, 342 U. S. 930.
Finally, it is argued that the District Court erred in setting aside so much of the ICC order as authorized an increase in the interstate fares to the two Wisconsin points. We believe, however, that these rates are so interwoven with and so closely bound to the intrastate rates that a proper disposition of this case reasonably requires that the Commission reconsider them as part of its reconsideration of the entire Chicago suburban commuter service. The only reason why the ICC increased the interstate rates was to make them conform to the increased intrastate rates.
Paragraph 3 of the District Court judgment dated June 14, 1956, is modified to provide that the remand to the ICC shall be for further proceedings not inconsistent with this opinion.
It is so ordered.
24 Stat. 383, as amended, 41 Stat. 484, 49 U. S. C. § 13 (4):
“Whenever in any such investigation the commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against interstate or foreign commerce, which is forbidden and declared to be unlawful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation, or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination. Such rates, fares, charges, classifications, regulations, and practices shall be observed while in effect by the carriers parties to such proceeding affected thereby, the law of any State or the decision or order of any State authority to the contrary notwithstanding.”
The injunction was stayed pending the hearing of the appeal to this Court. The excess fares are being impounded under a provision of the stay order providing for their refund to the persons who paid them in the event the judgment appealed from is affirmed.
The Milwaukee Road is the appellant in No. 12. The United States is the appellant in No. 27. The ICC is the appellant in No. 28. Bach appeals from the particular provisions of the judgment by which it is aggrieved.
The interstate fares to the two Wisconsin points were also raised in this proceeding by an ICC order entered November 21, 1955, and Order No. 26550, Passenger Fares and Surcharges, 214 I. C. C. 174, was modified so as to permit the rates to be made effective. No affirmative order raising the intrastate rates was made, however, until March 2, 1956. The ICC report allowed the Milwaukee Road and the Illinois Commerce Commission 60 days in which to adjust the intrastate rates on the bases prescribed in the report. Failing such adjustment the order of March 2, 1956, prescribing the intrastate rates was entered and Order No. 11703, Intrastate Rates Within Illinois, 59 I. C. C. 350, was modified to permit the Milwaukee Road to make the intrastate rates effective.
24 Stat. 383, as amended, 41 Stat. 484, 49 U. S. C. § 13 (3):
“Whenever in any investigation under the provisions of this chapter, or in any investigation instituted upon petition of the carrier concerned, which petition is authorized to be filed, there shall be brought in issue any rate, fare, charge, classification, regulation, or practice, made or imposed by authority of any State, the commission, before proceeding to hear and dispose of such issue, shall cause the State or States interested to be notified of the proceeding. The commission may confer with the authorities of any State having regulatory jurisdiction over the class of persons and corporations subject to this chapter or chapter 12 of this title with respect to the relationship between rate structures and practices of carriers subject to the jurisdiction of such State bodies and of the commission; and to that end is authorized and empowered, under rules to be prescribed by it, and which may be modified from time to time, to hold joint hearings with any such State regulating bodies on any matters wherein the commission is empowered to act and where the rate-making authority of a State is or may be affected by the action taken by the commission. The commission is also authorized to avail itself of the cooperation, services, records, and facilities of such State authorities in the enforcement of any provision of this chapter or chapter 12 of this title.”
Wisconsin R. Comm’n v. Chicago, B. & Q. R. Co., 257 U. S. 563, 586. “The effective operation of the [Interstate Commerce] act will reasonably and justly require that intrastate traffic should pay a fair proportionate share of the cost of maintaining an adequate railway system.”
This would seem to be particularly required here in light of the Commission’s recognition “that the deficit from the [Milwaukee Road’s] total passenger operations is relatively greater than from its suburban operations.” 297 I. C. C. 353, 359.
The Commission found that the Milwaukee Road earned in 1954 from its freight operations $37,293,050, and suffered a deficit from all passenger operations of $22,824,532, resulting in a net railway operating income of $14,568,518. This represented a return of approximately 2%.
We agree with the District Court that that portion of the prescribed increases designed to produce $77,000 annually as a contribution to indirect costs and taxes is not based upon adequate findings. There is no finding of the total of indirect costs and taxes to which contribution is to be made, nor any finding from which we may infer how the ICC derived its conclusion that a $77,000 contribution was fair. It is axiomatic that to know whether something is a fair proportionate part of something else, we must be told what the something else is.
On the other hand we cannot agree with the District Court that there was not support in the evidence for the ICC’s finding that the prescribed rates would be just and reasonable for the future. The ICC did not rely solely upon the comparison with the similar fares of the Northwestern, for there was ample other evidence in the record to sustain their findings. But the factors which determine the reasonableness of a rate are so different from the factors which determine what is a fair proportionate share of a carrier’s total income that a finding of the reasonableness of the rates prescribed does not embrace all the findings necessary to support the exercise of the § 13 (4) power.
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_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Frank G. RHODES, Appellant, v. Harry C. TINSLEY, Warden of Colorado State Penitentiary, Canon City, Colorado, Appellee.
No. 7948.
United States Court of Appeals Tenth Circuit.
April 2, 1965.
Ronald S. Luedemann, Denver, Colo., for appellant.
John E. Bush, Asst. Atty. Gen. (Duke W. Dunbar, Atty. Gen., and Frank E. Hickey, Deputy Atty. Gen., with him on the brief), for appellee.
Before PICKETT and LEWIS, Circuit Judges, and DAUGHERTY, District Judge.
PER CURIAM.
Appellant, a Colorado state prisoner, filed with the Chief Judge of this Court an application for a writ of habeas corpus which by order dated August 21, 1964, was transferred to the District Court for the District of Colorado pursuant to the provisions of 28 U.S.C. § 2241(b). The- District Court denied the application without a hearing upon the grounds that appellant’s contention that his confession had been improperly admitted into evidence during the state trial stated an issue that had been fully heard and found to be without merit in a prior habeas corpus proceeding lodged as an original action in that federal district court. The order of denial stated the trial court’s satisfaction that the ends of justice would not be served by further inquiry upon the issue. This appeal follows the order of denial.
The record clearly shows that appellant's contentions were fully considered in his prior application and our consideration of the earlier proceedings (which include a review of the entire state court proceedings) indicates no abuse of discretion upon the part of the trial court in refusing further inquiry. The case falls squarely within the contemplation of the provisions of 28 U.S.C. § 224-4.
The judgment is affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_weightev
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. Charles W. NOLAN, Jr., Defendant-Appellant.
No. 77-1231.
United States Court of Appeals, Tenth Circuit.
Submitted Oct. 4, 1977.
Decided Oct. 20, 1977.
C. Rabón Martin, Tulsa, Okl., filed a brief for defendant-appellant.
James P. Buchele, U. S. Atty., John K. Sargent, Asst. U. S. Atty., Topeka, Kan., filed a brief for plaintiff-appellee.
Before SETH and McWILLIAMS, Circuit Judges, and PICKETT, Senior Circuit Judge.
PER CURIAM.
The sole issue presented for our review is whether the district court abused its discretion in refusing to set aside an order forfeiting appellant Charles W. Nolan’s bond. We find no abuse of discretion under the facts here and affirm.
Nolan was arrested on drug charges on July 16, 1975 at the Wichita, Kansas airport. The facts surrounding his arrest and conviction are fully set forth in our opinion affirming the conviction on direct appeal. United States v. Nolan, 551 F.2d 266 (10th Cir. 1977). Bond was set on July 18,1975 at $10,000. Among the conditions of the bond was a travel restriction which provided that Nolan could not travel outside of Pennsylvania, his home, without prior court permission except to travel to Kansas for court appearances and to New Mexico. Bond was reduced to $5,000 on August 15, 1975. Nolan as principal and his father as surety executed the bond and paid $5,000 into the court registry. Nolan was eventually convicted on December 10, 1975. He was sentenced on January 19, 1976 and allowed to remain free on bond pending appeal.
On November 1, 1976 the government filed a motion for an order to show cause why Nolan’s bond should not be forfeited for breach of the travel restriction. The motion was based upon information received from the Drug Enforcement Administration that Nolan had traveled from New York to New Delhi, India on September 20, 1976. The district court issued a show cause order on November 2, 1976 directing Nolan to appear before the court at 9:30 a. m. on November 15, 1976 to show cause why the bond should not be forfeited for breach of the travel restriction. The record shows that the order was sent to Nolan’s home in Newcastle, Pennsylvania and the return receipt was signed by Nolan’s father. A copy of the show cause order was also' sent to Nolan’s attorney. Counsel for Nolan filed a response to the motion on November 11, 1976. Thereafter, Nolan failed to appear as directed on November 15,1976 and the district court entered an order forfeiting the bond for failure to appear as required by the bond and as set forth in the show cause order. The court also issued a bench warrant for Nolan’s arrest. On November 22, 1976, Nolan's attorney filed a motion to determine the conditions of setting aside the forfeiture and a motion for a rehearing. The district court treated the motions as a motion to set aside the forfeiture. Nolan subsequently was arrested when he returned to the United States from India on December 2, 1976.
The district court held a hearing on Nolan’s motion on December 13, 1976. Nolan admitted the breach of the travel restriction and the matter was by agreement submitted to the court on the basis of the statements made by counsel. The court entered its order denying the motion to set aside the forfeiture on February 2, 1977.
Pursuant to Rule 46, F.R.Cr.P., the district court had no discretion in determining whether the bond should be forfeited. That Rule provides in part that:
“(e) Forfeiture
(1) Declaration. If there is a breach of condition of a bond, the district court shall declare a forfeiture of the bail.” (emphasis added)
In the instant case, Nolan breached two conditions of the bond: he failed to appear in court as directed and he violated the travel restriction. These two violations mandated forfeiture of the bond. The pivotal question then, as noted earlier, is whether the district court abused its discretion in refusing to set aside the forfeiture. See e. g., United States v. Coats, 458 F.2d 192 (10th Cir. 1972); Williams v. United States, 444 F.2d 742 (10th Cir. 1971). The burden of proving that the forfeiture should be set aside is on Nolan. United States v. Foster, 417 F.2d 1254 (7th Cir. 1969). Factors to be considered in making that determination include willfulness of the breach and prejudice to the government. See e. g. United States v. Nell, 169 U.S.App.D.C. 380, 515 F.2d 1351, 1353 (1975) and cases cited therein.
Among the arguments advanced here is that the court erred in failing to set forth pursuant to Rule 46(e)(2) the conditions which would warrant setting aside the forfeiture. We think this contention is without merit. The section is permissive and certainly there is no obligation on the part of the trial court to set such conditions prior to hearing. Indeed, common sense dictates that a hearing would shed light on what conditions, if any, should be set. Here, following the hearing, the court implicitly found no conditions were appropriate. We agree.
The district court found that Nolan’s breach of the conditions was willful, that the government was prejudiced thereby, and that neither Nolan as principal nor his father as surety offered any cogent reasons for the breaches. These findings are fully supported by the record. The record shows that Nolan fraudulently obtained the passport which permitted his sojourn in India by stating on the application that he had lost his prior passport while traveling in Kansas when in fact his passport had been confiscated at the time of his initial arrest on July 16, 1975. And, as noted, he admitted that he violated the travel restriction. Further, Nolan argued in the district court that he did not receive personal notice of the November 15, 1976 hearing. This lack of notice is clearly chargeable to Nolan. The show cause order was sent to the address given by Nolan and was signed by his father. As the district court found, if Nolan desired personal notice, he should have notified the district court of the change of his address. We have no hesitation in agreeing with the district court that both the failure to appear in court as directed by the show cause order and the breach of the travel restriction were willful on the part of Nolan.
The district court also found that the government suffered prejudice. As noted, this finding is supported by the record and we believe it is unnecessary to go behind this finding to ascertain the exact extent of such prejudice.
Finally, the record shows that no cogent reasons for the breaches were offered by either Nolan or his father. Under such circumstances relief is not available. Williams v. United States, supra.
The judgment of the district court is affirmed.
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:
|
sc_adminaction_is
|
B
|
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.
UNITED STATES v. VON NEUMANN
No. 84-1144.
Argued November 4, 1985
Decided January 14, 1986
Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, Powell, Rehnquist, and O’Connor, JJ., joined, and in Parts I and II of which Burger, C. J., joined. Burger, C. J., filed an opinion concurring in part, post, p. 251. Stevens, J., filed an opinion concurring in the judgment, post, p. 252.
Alan I. Horowitz argued the cause for the United States. With him on the brief were Acting Solicitor General Fried, Assistant Attorney General Trott, and Deputy Solicitor General Frey.
Charles L. Birke argued the cause and filed a brief for respondent.
Justice Brennan
delivered the opinion of the Court.
We must decide in this case whether a 36-day delay by the United States Customs Service in responding to a remission petition filed by respondent in response to the seizure of his car by customs agents deprived respondent of property without due process of law.
I
Title 19 U. S. C. § 1497 provides that any article not declared upon entry into the United States which by law must be declared is subject to forfeiture or to a penalty equaling the value of the article. After seizure of an article by the United States Customs Service, a claimant to it has essentially two options. He may pursue an administrative remedy under 19 U. S. C. §1618 (1982 ed., Supp. Ill), which vests in the Secretary of the Treasury the discretionary authority to mitigate or remit the penalty or forfeiture, or he may challenge the seizure in a judicial forfeiture action initiated by the Government. 19 U. S. C. §§ 1602-1604.
In 1974, respondent John Von Neumann shipped to Vancouver, Canada, a 1974 Jaguar Panther automobile he purchased in Switzerland. On January 20, 1975, he and a friend picked up the car in Vancouver, obtained a release from Canadian Customs to take possession of the vehicle and also obtained a form that Von Neumann was to deliver to the Canadian Customs station at the border. Von Neumann failed to deliver the form to Canadian Customs officials. He claimed that he inadvertently drove past the Canadian Customs station because of poor visibility and inadequate directions. Instead, Von Neumann and his friend arrived at the United States border checkpoint at Blaine, Washington, where they were questioned by United States Immigration Officer Harry Perkins, a designated customs officer. Canadian Customs officials had earlier alerted United States Customs that Von Neumann’s car would be crossing the border, and Perkins specifically asked Von Neumann whether he had anything to declare. When Von Neumann failed to declare the automobile, Perkins asked him into the checkpoint station and referred the matter to Customs Inspector Donald E. Morrison. Upon being asked why he had not declared the car, Von Neumann explained that he did not think a declaration was required. Morrison then seized the car pursuant to 19 U. S. C. § 1497.
That same day, January 20, Von Neumann prepared a “Petition for Remission or Mitigation of Forfeitures and Penalties Incurred,” pursuant to 19 U. S. C. § 1618, explaining that he had not intended to violate United States Customs laws when he failed to declare the car. Two weeks later, on February 3, Von Neumann posted a bond for $24,500, the value of his car, and Customs released the vehicle pursuant to its authority under 19 U. S. C. § 1614. On February 12, counsel for Von Neumann filed a supplement to the original remission petition. On February 25 — 36 days after the petition was filed — the Seattle District Director of the Customs Service, pursuant to delegation of authority from the Secretary of the Treasury, acted on Von Neumann’s remission petition, and informed Von Neumann that the penalty for failure to declare the car was being reduced to $3,600. On administrative review of this determination, the Regional Commissioner of Customs in San Francisco, on April 14, 1975, upheld the $3,600 penalty.
Having exhausted his administrative remedies, Von Neu-mann filed a complaint in the United States District Court for the Central District of California. He sought cancellation of the $3,600 penalty on the ground that he had not violated § 1497. He also requested an injunction prohibiting Customs from placing his name on a computer list of violators, and a declaration that this seizure and penalty were unlawful. The District Court found that Von Neumann had violated 19 U. S. C. § 1497, and that seizure of the car therefore was proper. The court also upheld the validity of the remission and mitigation procedures. Accordingly, it entered judgment for the Government. Von Neumann appealed this de-cisión, challenging both the procedures followed by Customs in imposing the penalty and also the penalty itself.
The Court of Appeals for the Ninth. Circuit agreed with the District Court that Von Neumann had violated § 1497. 660 F. 2d 1319, 1323 (1981). The court, however, also considered and sustained Von Neumann’s claim that the 36-day delay in acting on his remission petition denied Von Neu-mann due process of law in violation of the Fifth Amendment. The court reasoned that speed in the handling of the remission petition, particularly where the seizure is of an automobile, is constitutionally required — that strict guidelines in responding to remission petitions are necessary “to ensure the due process rights of administrative claimants,” id., at 1326-1327, and concluded that Customs must “act on a petition for remission or mitigation within 24 hours of receipt,” id., at 1327. In addition, the court ruled, a claimant has a right to a personal appearance to present his or her claim. Ibid.
The Government petitioned for certiorari. We granted the petition, vacated, and remanded for reconsideration in light of United States v. $8,850, 461 U. S. 665 (1983). 462 U. S. 1101 (1983). In $8,850, however, the issue presented did not involve the remission procedure; rather the question was whether the Government’s 18-month delay in bringing a forfeiture proceeding violated the claimant’s right to due process of law. The Court held that due process requires a postseizure determination within a reasonable time of the seizure. We concluded that the four-factor balancing test of Barker v. Wingo, 407 U. S. 514 (1972), provides the relevant framework for determining whether a delay was reasonable. The Barker test involves a weighing of four factors: the length of any delay, the reason for the delay, the defendant’s assertion of his right, and prejudice suffered by the defendant. Applying this test to the 18-month delay before it, the Court in $8,850 found no unreasonable delay, in part because a substantial portion of the delay in question was attributable to pending administrative and criminal proceedings.
On remand in this case, the Court of Appeals recognized that $8,850 “presented a somewhat different issue from that arising in the instant case,” 729 F. 2d 657, 659 (1984), because $8,850 dealt with forfeiture rather than the remission procedure. Nevertheless, it concluded that this Court’s holding in $8,850 “reinforces our earlier view that due process rights attach to the processing of the petition for remission,” 729 F. 2d, at 660, and therefore reaffirmed its holding that “due process requires Customs to act promptly in ruling on petitions for remission or mitigation under 19 U. S. C. §1618.” Ibid. The court recognized that its earlier attempt to set specific time limits for the processing of remission petitions was “ill-advised,” ibid., and held instead that the Barker factors should also be applied to determine whether Customs has violated due process in delaying a response to a remission petition. The court accordingly remanded the case to the District Court to consider whether the 36-day delay violated due process. In addition, however, the court made clear its view that the circumstances of this case support a finding of a due process violation. Thus, the court noted that the propriety of the length of the delay may turn on the nature of the item that has been seized, and reemphasized the point made in its earlier opinion that “special hardships [are] imposed on persons deprived of the use of their automobiles . . . .” 729 F. 2d, at 661. With respect to the reason for the delay, the Court of Appeals observed that the “record here provides no obvious reason for the Government’s one-month delay in processing von Neumann’s petition, although we note that Customs processes a great number of petitions each year.” Ibid. In addition, the court pointed to the filing of the remission petition itself as the necessary assertion of the right to a speedy determination under Barker. Finally, the court noted that prejudice could be established by the inconvenience of being without a vehicle for any length of time.
Arguing that due process considerations do not govern the Secretary’s disposition of remission petitions, the Government petitioned for certiorari. We granted the Government’s petition. 471 U. S. 1064 (1984). We now reverse.
I — ! b — I
We understand respondent to argue that his property interest in his car gives him a constitutional right to a speedy disposition of his remission petition without awaiting a forfeiture proceeding. We disagree. Implicit in this Court’s discussion of timeliness in $8,850 was the view that the forfeiture proceeding, without more, provides the postseizure hearing required by due process to protect Von Neumann’s property interest in the car. Respondent argues, however, that “[t]he petition for remission procedure is just one step in which it is determined whether that property interest will be extinguished via a judicial foreclosure proceeding.” Brief for Respondent 8-9. We think respondent misunderstands the remission procedure’s role. It is true that, as a practical matter, most forfeitures are disposed of through the administrative remission procedures, but that is constitutionally irrelevant. We noted in One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 234 (1972), that in the event an item is not declared at the border under § 1497 “[t]he Government need only prove that the property was brought into the United States without the required declaration; the Government bears no burden with respect to intent.” The remission statute simply grants the Secretary the discretion not to pursue a complete forfeiture despite the Government’s entitlement to one. Remission proceedings supply both the Government and the claimant a way to resolve a dispute informally rather than in judicial forfeiture proceedings. But remission proceedings are not necessary to a forfeiture determination, and therefore are not constitutionally required. Thus there is no constitutional basis for a claim that respondent’s interest in the car, or in the money put up to secure the bond, entitles him to a speedy answer to his remission petition.
Ill
While his interest in the car is the only basis on which respondent relies in his support of the Court of Appeals’ decision, the Government asks that the Court adjudge the case of a claimant who relies on the argument that § 1618 itself creates a property right which cannot be taken away without due process that includes a speedy answer to a remission petition. The Government argues that the statute creates no such right. We need not address the hypothetical, however. It is abundantly clear on, the record in this case that, even if respondent had such a property right, any due process requirement of timely disposition was more than adequately provided here. It is difficult, indeed impossible, to see what prejudice respondent suffered from the 36-day delay in the response. True, he was without his car for 14 days, and then, for another 22 days, without the money he had to put up to secure a bond, and Von Neumann urges the importance of automobiles to citizens in this society. But we have already noted that his right to a forfeiture proceeding meeting the Barker test satisfies any due process right with respect to the car and the money. In fact, it is not altogether certain that the delay dated from the filing on January 20 of the original remission petition. Respondent supplemented his remission petition and was given a final decision just 13 days later. Moreover, respondent gives no hint as to how or why even a 36-day delay in the disposition of his remission petition deprived him of the process he claims was his due in connection with that petition. He does not argue that the delay prejudiced his defense against the forfeiture, see $8,850, 461 U. S., at 569, and with respect to preparing his “case” for remission, that case was made at the time of filing and could not have been affected by the subsequent delay. On the record before us, the 36-day delay cannot be said to deprive respondent of due process of law.
Reversed.
Section 497, 46 Stat. 728, 19 U. S. C. § 1497, provides:
“Any article not included in the declaration and entry as made, and, before examination of the baggage was begun, not mentioned in writing by such person, if written declaration and entry was required, or orally if written declaration and entry was not required, shall be subject to forfeiture and such person shall be liable to a penalty equal to the value of such article.”
Section 618, 46 Stat. 757, as amended and set forth in 19 U. S. C. § 1618 (1982 ed., Supp. Ill), provides in pertinent part:
“Whenever any person interested in any vessel, vehicle, aircraft, merchandise, or baggage seized under the provisions of this chapter, or who has incurred, or is alleged to have incurred, any fine or penalty thereunder, files with the Secretary of the Treasury if under the customs laws ... before the sale of such vessel, vehicle, aircraft, merchandise, or baggage a petition for the remission or mitigation of such fine, penalty, or forfeiture, the Secretary of the Treasury ... if he finds that such fine, penalty, or forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine, penalty, or forfeiture, may remit or mitigate the same upon such terms and conditions as he deems reasonable and just, or order discontinuance of any prosecution relating thereto.”
The claimant may trigger the Government’s initiation of forfeiture proceedings. In United States v. $8,850, 461 U. S. 555, 569 (1983), we noted:
“A claimant is able to trigger rapid filing of a forfeiture action if he desires it. First, the claimant can file an equitable action seeking an order compelling the filing of the forfeiture action or return of the seized property. See Slocum v. Mayberry, 2 Wheat. 1, 10 (1817) (Marshall, C. J.). Less formally, the claimant could simply request that the Customs Service refer the matter to the United States Attorney. If the claimant believes the initial seizure was improper, he could file a motion under Federal Rule of Criminal Procedure 41(e) for a return of the seized property.”
When the Jaguar was seized in this case, a customs officer could have instituted nonjudicial, summary forfeiture proceedings if the value of the car had been not more than $10,000. See 19 U. S. C. §§ 1607-1609. Congress has since raised this limit to $100,000. 19 U. S. C. § 1607 (1982 ed., Supp. III). Even for a seizure of property appraised at less than $100,000, the claimant has a right to a judicial determination upon posting a bond to cover costs in the sum of $2,500 or 10% of the value of the claimed property, whichever is smaller, but not less than $250. 19 U. S. C. § 1608 (1982 ed., Supp. III).
The Secretary of the Treasury is authorized by statute to act on petitions for remission. 19 U. S. C. § 1618. This authority has been delegated to District Directors of the Customs Service in some cases where the total value of the merchandise forfeited does not exceed $100,000, 19 CFR § 171.21 (1985). At the time of this seizure, the limit was $25,000. See 19 CFR § 171.21 (1974).
The Government filed a contingent counterclaim seeking recovery of the full $24,500 in accordance with 19 U. S. C. § 1497, in the event the District Court found the mitigation invalid. Because the District Court entered judgment in favor of the Government on the merits of Von Neumann’s complaint, it denied the contingent counterclaim. In its answer in the District Court the Government had also contended that the remission and mitigation sought and received by respondent was a settlement, accord, and satisfaction binding on Von Neumann. The District Court did not reach this issue; nor do we.
In $8,850 the claimant conceded that no preseizure hearing is required when Customs makes a seizure at the border. Respondent does not dispute that here, and we doubt that he could. In $8,850 we noted that while the general rule is that “absent an ‘extraordinary situation’ a party cannot invoke the power of the state to seize a person’s property without a prior judicial determination that the seizure is justified. . . . [D]ue process does not require federal customs officials to conduct a hearing before seizing items subject to forfeiture.” 461 U. S., at 562, n. 12. We reasoned that such a requirement would make customs processing entirely unworkable and also found that because “the seizure serves important governmental purposes[,] a preseizure notice might frustrate the statutory purpose ....” Ibid.
We noted in $8,850 that Customs processes over 50,000 noncontraband forfeitures per year, and that in 90% of all seizures, the claimant files a petition for remission or mitigation. We further noted that the Secretary in turn grants at least partial relief for an estimated 75% of the petitions. Typically, this mitigation process terminates the dispute without the necessity of filing a forfeiture action.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
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songer_circuit
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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 circuit of the court that decided the case.
Francis Edward KLIMAS, Appellant, v. James MABRY, Commissioner, Arkansas Department of Corrections, Appellee.
No. 78-1663.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 12, 1979.
Decided May 30, 1979.
Rehearing and Rehearing En Banc Denied Aug. 13, 1979.
See 603 F.2d 158.
Richard F. Quiggle, Little Rock, Ark., for appellant.
Neal Kirkpatrick, Asst. Atty. Gen., Little Rock, Ark., for appellee; Bill Clinton, Atty. Gen., and James E. Smedley, Asst. Atty. Gen., Little Rock, Ark., on brief.
Before HEANEY and McMILLIAN, Circuit Judges, and SCHATZ, District Judge.
ALBERT G. SCHATZ, United States District Judge, for the District of Nebraska, sitting by designation.
HEANEY, Circuit Judge.
Francis Edward Klimas, an Arkansas state prisoner, appeals from the order of the District Court dismissing his petition for a writ of habeas corpus. On appeal, Klimas contends that the writ should have been granted because his cross-examination of a key prosecution witness at his state trial was impermissibly restricted, and because records of seven Missouri convictions, which were silent as to Klimas’s representation by counsel, were considered by the jury in the enhancement of his sentence under the Arkansas Habitual Criminal Act, Ark. Stat.Ann. § 43-2328. We reverse and remand.
Klimas was convicted of burglary and grand larceny, in violation of Ark.Stat.Ann. §§ 41-1003 and 41-3907 (repealed 1976), in Jefferson County Circuit Court on April 23, 1975. After the verdicts of guilty were returned, the second part of the information, charging Klimas with being a habitual criminal under Ark.Stat.Ann. § 43-2328, was read to the jury. The prosecution then offered into evidence certified copies of records from the Department of Correction, Missouri State Penitentiary, which indicated that Klimas had been previously convicted of seven felonies in Missouri. The defense objected to the introduction of this evidence on the ground that the records were silent as to whether Klimas had been represented by counsel. This objection was overruled. The prosecution also introduced certified copies of records from the Arkansas State Penitentiary, which indicated that Klimas had pled guilty to three burglary-grand larceny transactions, occurring on February 12, 21 and 26 of 1972, for which he received three concurrent, five-year sentences. No objection to the introduction of this evidence was made.
Arguments on the habitual criminal charge were made to the jury by both the prosecution and the defense. The jury was then instructed and sent to deliberate with four verdict forms. The first form provided that if the jury found Klimas guilty of having been convicted of no prior felony offense, his punishment should be fixed at not less than one nor more than twenty-one years for grand larceny, and not less than two nor more than twenty-one years for burglary. The second form provided that if the jury found him guilty of having been convicted of one prior felony offense, his punishment should be fixed at not less than two nor more than twenty-one years for grand larceny, and not less than three nor more than twenty-one years for burglary. The third form provided that if he was found guilty of having been convicted of two prior felony offenses, his punishment for grand larceny should be fixed at not less than four nor more than twenty-one years for grand larceny, and not less than five nor more than twenty-one years for burglary. The fourth form provided that if he was found guilty of having been convicted of three prior felony offenses, his punishment should be fixed at not less than twenty-one nor more than thirty-one and one-half years for grand larceny, and the same for the crime of burglary. The jury found that Klimas had been convicted of three prior felonies and fixed his sentence at thirty-one and one-half years for grand larceny, and thirty-one and one-half years for burglary. The trial judge ordered that Klimas serve these sentences consecutively.
Klimas appealed to the Arkansas Supreme Court, raising, among other grounds, the two grounds for reversal urged here. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976), cert. denied, 429 U.S. 846, 97 5. Ct. 128, 50 L.Ed.2d 117 (1976). The Arkansas Supreme Court held that since the records of Klimas’s Missouri convictions were silent concerning his representation by counsel, they were inadmissible in the sentencing enhancement proceeding under Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The Court reversed the judgment and remanded the case for a new trial unless the Arkansas Attorney General, within seventeen calendar days, accepted a reduction of Klimas’s sentence to three years, the minimum sentence which he could have received for the burglary and grand larceny charges. 534 S.W.2d at 207. On rehearing, the Court modified its original order and imposed a sentence of forty-two years, twenty-one years for each offense. The Court reasoned that since the six prior Arkansas convictions (three burglary-larceny transactions) were unchallenged by Klimas in the trial court, the minimum sentence which Klimas could have received would have been twenty-one years, making a total of forty-two years for the two offenses. The Court concluded that any possible prejudice to Klimas would be removed by reduction of his sentence to forty-two years. Id. Klimas’s other grounds for the reversal of his conviction were rejected. The State subsequently agreed to this reduction, sentencing Klimas, in effect, to forty-two years imprisonment for the commission of four petty burglaries, three of which occurred within a fourteen-day period and for which he had previously served one five-year sentence.
Klimas then brought this habeas corpus action in federal District Court, raising the same issues which were raised in his state appeal and which he raises now. A hearing was held in the District Court on May 10, 1978. At that hearing, the District Court expressed concern that Klimas had received such a severe sentence for this series of petty crimes. The court believed that it was without jurisdiction, however, both because Klimas’s petition failed to sufficiently allege a violation of a constitutional right and because the United States Supreme Court denied certiorari in his appeal from the decision of the Arkansas Supreme Court. The District Court dismissed Kli-mas’s petition for lack of jurisdiction, and he now appeals.
To the extent that the District Court believed that it was without jurisdiction to consider Klimas’s petition because of the United States Supreme Court’s denial of certiorari, it was in error. If, in exhausting state remedies, a state prisoner unsuccessfully seeks Supreme Court review, no weight is to be given to this denial when considering the prisoner’s later petition for habeas corpus. See 28 U.S.C. § 2244(c); Brown v. Allen, 344 U.S. 443, 488-497, 73 S.Ct. 397, 97 L.Ed. 469 (1953); 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 114264 at 631 (1978).
We, therefore, turn to the more difficult question presented by this petition: whether Klimas’s pro se petition, liberally construed, sufficiently states the deprivation of a constitutional right which would justify the granting of federal habeas corpus relief. See 28 U.S.C. § 2254; Louis Serna v. Donald Wyrick, 594 F.2d 869 (8th Cir., 1979); DeBerry v. Wolff, 513 F.2d 1336, 1338 (8th Cir. 1975).
We agree with the District Court that any error which the state trial court committed in restricting the cross-examination of Arlie Weeks, Klimas’s accomplice and the prosecution’s principal witness against him, did not rise to the level of the deprivation of a constitutional right. Kli-mas’s counsel, in an apparent attempt to show that Weeks expected assistance from the prosecuting attorney in obtaining parole from his current incarceration in exchange for his testimony, asked Weeks whether he was aware that the recommendation of the prosecuting attorney is required before parole is granted in Arkansas. The prosecutor objected to the question; but before the court ruled on the objection, Weeks answered in the negative. The court then sustained the objection. Failure to allow effective cross-examination aimed at eliciting the bias of a prosecution witness can rise to the level of a constitutional violation. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Although the objection here was probably erroneously sustained, since Weeks did answer the question prior to the court’s ruling and since no further attempts were made by Klimas’s counsel to elicit Weeks’ possible bias, we cannot say that this error by the state trial court constituted a violation of Klimas’s constitutional rights which would justify the granting of habeas corpus relief.
We find, however, that, under the particular facts of this case, the failure of the Arkansas Supreme Court to follow the sentencing procedure required by the Arkansas Habitual Criminal Act, Ark.Stat.Ann. § 41-1005 or § 43-2330.1, in the resentencing of Klimas after the rehearing of his case resulted in a deprivation of due process which justifies the granting of habeas corpus relief.
Generally, the failure of a state court to comply with the provisions of state law in its criminal trials is purely a matter of local concern and is not reviewable by federal courts under the due process clause of the federal Constitution. See Buchalter v. New York, 319 U.S. 427, 429-430, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943); Cox v. Hutto, 589 F.2d 394 at 395 (8th Cir., 1979). The failure of a state to afford a particular defendant the benefit of established procedures under state law may, however, result in a denial of due process when the error made by the state court renders the state proceedings so fundamentally unfair or so fundamentally deficient that they are inconsistent with the rudimentary demands of fair procedure. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Buchalter v. New York, supra, 319 U.S. at 429-430, 63 S.Ct. 1129; DeBerry v. Wolff, supra at 1338; Shirley v. State of N. C., 528 F.2d 819, 822 (4th Cir. 1975).
Under the Arkansas Habitual Criminal Act, an individual who is charged with being a habitual criminal is tried for that offense after a verdict of guilty has been returned for the primary felony charge on which he has just been tried. Ark.Stat. Ann. §§ 41-1005, 43-2330.1. Evidence pertaining to the defendant’s previous felony convictions is submitted to the jury and the defendant has the right to controvert such evidence or to submit other evidence in his support. Id. The jury must then retire; and only upon its finding that the defendant has been convicted of prior felonies may a particular enhanced sentence be imposed. Id. Throughout this procedure, the State bears the burden of proving the prior convictions of the defendant, McConahay v. State, 257 Ark. 328, 516 S.W.2d 887, 889 (1974), and the weighing of the evidence and the ultimate factual finding that the defendant is a habitual criminal are for the jury alone. Id.
Where a state has provided, by statute, that a habitual criminal charge is to be tried to a jury, we do not believe that the state can abrogate that right in a particular case without violating the notions of fundamental fairness inherent in the due process clause. Where a right to trial by jury has been established under state law, the state cannot deny a particular accused that right without violating even the minimal standards of the due process clause. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Berrier v. Egeler, 583 F.2d 515, 522 (6th Cir. 1978); Wolfs v. Britton, 509 F.2d 304 (8th Cir. 1975); Shirley v. State of N. C., supra; Braley v. Gladden, 403 F.2d 858, 860-861 (9th Cir. 1968). While a habitual criminal proceeding is commonly thought of as a sentence-enhancement proceeding, rather than as a trial for a substantive offense, we believe that the highly penal nature of the Arkansas Habitual Criminal Act requires that the statutory requirements for conviction under that Act be strictly construed. See Cox v. Hutto, supra; Parker v. State, 258 Ark. 880, 529 S.W.2d 860, 863 (1975); McConahay v. State, supra, 516 S.W.2d at 889; Higgens v. State, 235 Ark. 153, 357 S.W.2d 499, 501 (1962).
After the Arkansas Supreme Court found that the evidence of Klimas’s seven Missouri convictions were erroneously submitted to the jury, the Court did not remand his case for retrial on the habitual criminal charge. Instead, the court reimposed a sentence under the Habitual Criminal Act on the theory that the evidence of his prior Arkansas convictions, which was also submitted to the jury, could have supported the jury’s finding that he had three prior convictions and, thus, was subject to the harshest penalty available under the habitual criminal law which was in effect at the time of Klimas’s trial. It is impossible to tell from the jury’s verdict, however, which three prior offenses were used by the jury to support its conviction on the habitual criminal charge. There is no way we can assume that the jury found Klimas to be guilty of having been convicted of the prior Arkansas offenses since any three of the Missouri convictions alone would have supported the findings of the jury and the sentence which is imposed.
The State, citing Rose v. Hodges, 423 U.S. 19, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975), argues that since the Arkansas Supreme Court modified Klimas’s sentence without affording him a redetermination by jury of the habitual criminal charge, we must assume that such an action was authorized by state law. We do not believe that Rose stands for so broad a proposition. In Rose, whether or not the sentences imposed upon respondents were subject to commutation by the Governor of Tennessee was a disputed question of state law, resolved in favor of commutation by the Tennessee courts. We do not believe that Rose stands for the proposition that where rights under state law are clear, the denial of those rights to a particular accused by the state courts is insulated from federal habeas corpus review. As stated by the Ninth Circuit in Braley v. Gladden, supra :
Emphasizing that tfie jury trial in this case arose solely from * * * the Oregon constitution, the appellee insists that the interpretation by Oregon courts as to that which is required by Oregon’s constitution is firmly controlling. * * *
Unquestionably, the state courts should have the primary responsibility for determining the application of the state constitutions; however, this principle does not diminish our responsibility to insure that state constitutional interpretations are consistent with the federal Constitution.
Id. at 860. See also Ellingburg v. Lockhart, 397 F.Supp. 771, 776 (E.D.Ark.1975).
The question which remains is whether the state court’s failure to afford Klimas a redetermination of the habitual criminal charge by jury was, in any event, harmless error since Klimas did not challenge the existence of the Arkansas convictions at the state trial or on appeal. The Arkansas Supreme Court held that since, in view of the unchallenged Arkansas convictions, the minimum sentence which Klimas could have received under § 43-2328(3) would have been twenty-one years on each charge, the reduction of his sentence from sixty-three years to forty-two years would remove any possible prejudice to him.
Retrial of a criminal defendant on a habitual criminal charge may be a' futile gesture where evidence of convictions, which was properly submitted to the jury, is unchallenged by the defendant. See, e. g., Roach v. State, 255 Ark. 773, 503 S.W.2d 467, 471 (1973). In this case, however, Klimas’s right to a retrial of the habitual offender charge is of importance since the provisions of the Arkansas Habitual Criminal Act were changed between the time of his state court' trial and the time of the modification of his sentence by the Arkansas Supreme Court. Under Ark.Stat. Ann. § 43-2328(3), in effect at the time of his trial, Klimas’s six Arkansas convictions (three burglary-larceny transactions) would, as the Arkansas Supreme Court indicated, require a sentence of at least twenty-one years on each of his current charges. Under the new provisions of the Habitual Criminal Act, Ark.Stat.Ann. § 41-1001 (effective January 1,1976), each of the Arkansas burglary-larceny transactions, of which Klimas had previously been convicted, would be considered only as a single felony conviction, giving him a total of three prior felony convictions. With this record, under the new law, he would appear to be subject to a sentence of not less than five, nor more than thirty, years on each of his current charges. Since neither the briefs filed by the parties nor our questions at oral argument resolved whether the old or new law would govern a retrial of the habitual criminal charge and the penalty to be assessed thereunder, we cannot say, as a matter of law, that the failure to afford Klimas a jury redetermination of this charge was in no way prejudicial to him.
The order dismissing Klimas’s petition is vacated, and the case remanded to the District Court. Upon remand, the District Court shall hold the petition in abeyance in order to afford the State of Arkansas the opportunity to resentence Klimas by jury in accordance with Arkansas law. If the State fails to initiate a resentencing procedure in Arkansas state court within a reasonable time, the District Court shall grant the writ.
. Klimas’s petition was brought under 28 U.S.C. § 2254.
. Evidence introduced at Klimas’s trial indicated that Klimas and an accomplice, Arlie Weeks, burglarized the Dixie Wood Preserving Company plant near Pine Bluff, Arkansas, and stole a check made out to the Potlatch Corporation, ten walkie-talkie radios and coins from two soft-drink dispensing machines. Weeks testified that the men obtained approximately $58.00 from the machines, which they split between them.
. Ark.Stat.Ann. § 43-2328 provides:
Second or subsequent convictions — Sentence. — Any person convicted of an offense, which is punishable by imprisonment in the penitentiary, who shall subsequently be convicted of another such offense, shall be punished as follows:
(1) If the second offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one (1) year more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for this offense, unless the maximum sentence is less than the minimum sentence plus one (1) year, in which case the longer term shall govern.
(2) If the third offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than three (3) years more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for the offense, unless the maximum sentence is less than the minimum sentence plus three (3) years, in which case the longer term shall govern.
(3) If the fourth or subsequent offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for the fourth or subsequent offense for a determinate term not less than the maximum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than one and one half (IV2) times the maximum sentence provided by law for a first conviction; provided, that any person convicted of a fourth or subsequent offense shall be sentenced to imprisonment for not less than five (5) years.
. These convictions, dating back to 1951, were as follows: grand larceny, sentence — two years, time served — one year; burglary and stealing, sentence — two consecutive two-year terms, time served — two and one-half years; three counts of stealing, sentence — three four-year concurrent terms, time served — more than two years; two counts of robbery, sentence— two concurrent eight-year terms, time served— four and one-half years.
. The February 12, 1972, crime involved theft of two television sets, some clothing and a shotgun from a house after entering through an unlocked garage door. The February 21, 1972, crime involved the theft of cigarettes, an undisclosed amount of money and personal property from an open truck. The February 26, 1972, crime involved the theft of approximately $150.00 from a tavern’s vending machines.
. The District Court stated:
THE COURT: I wish I could find some reason to give this petition consideration. It seems to me like its almost a tentative action taken by the state court on the charge of this nature — forty-two years under Arkansas law. But this Court has no right to disturb the decision of the state court.
******
THE COURT: Well, I simply don’t know if this Court can do anything about it on the charges you bring. The record on which you rely is that the state court sentenced you under the provisions of law. The Supreme Court of Arkansas heard — was in the process of remanding it for you to have a reduction to three years. What was the charge that you were being tried for here?
[MR. KLIMAS]: Burglary and larceny, your Honor.
THE COURT: Were all cases that you’ve been involved burglary and larceny?
[MR. KLIMAS]: Yes, sir.
THE COURT: And you just contend that the Court was in error in presenting it to the jury wherein you were convicted. Unless there’s some showing of [a] constitutional right being violated, this Court just doesn’t have any jurisdiction over the matter. * *
Then you say that the Court was in error contrary to federal law in not reversing the original conviction, with orders to grant a new trial. Well, what you say here is the Supreme Court of Arkansas was wrong, when on a rehearing it modified its previous decision. And that certainly is not a constitutional question here.
I have a great deal of feeling about this because of the sentence. I know the state court probably was trying to carry out the state law and I would suspect that the Supreme Court had in mind that that was a terrible sentence to impose upon .you, and it was looking for some reason to do something about it. * * *
I wish I could suggest some action for you to take to try to do something about this rather severe sentence under Arkansas law. * *
******
THE COURT: Well, I sure would make a pitch before the Parole Board, is about all I can suggest to you. I am sorry I can’t do anything for you under the circumstances.
An order will be entered accordingly dismissing the petition for lack of jurisdiction. 1 hope you will find another reason that you can get some relief anyway.
[MR. KLIMAS]: Thank you, your Honor. Transcript of Proceedings before the Honorable Oren Harris, United States Senior District Judge, May 10, 1978, at 6-9.
. The State conceded below that Klimas has exhausted his state remedies, and no claim to the contrary is made in the briefs before us. In any event, the federal rule that a state prisoner’s state-court remedies must be exhausted before federal habeas corpus relief will lie is based on principles of comity, rather than the absence of federal power. Cage v. Auger, 514 F.2d 1231, 1232 (8th Cir. 1975); Smith v. Wolff, 506 F.2d 556 (8th Cir. 1974). Where it is clear that the state courts have had an opportunity to correct the constitutional error, there has been a sufficient vindication of the state’s interests and the federal courts should proceed to entertain the § 2254 proceeding. Cage v. Auger, supra at 1232-1233. We are satisfied that the substance of Klimas’s claims, concerning the restriction of the cross-examination of his accomplice and the imposition of his forty-two year sentence by the Arkansas Supreme Court, have been fairly considered by the Arkansas courts and that no purpose would be served by their presentation once again to the state courts. See Wolfs v. Britton, 509 F.2d 304, 308 (8th Cir. 1975).
. At the time of Klimas’s trial on April 23, 1975, trial of habitual criminal charges was governed by Ark.Stat.Ann. § 43-2330.1. An extensive revision of the Arkansas Criminal Code was passed by the Arkansas legislature in 1975 and became effective on January 1, 1976. Under the new Criminal Code, the procedure for imposing an extended sentence on a person found to be a habitual offender is set forth in Ark.Stat.Ann. § 41-1005. This section is taken, almost verbatim, from the previous section. Although the new Criminal Code did not explicitly repeal § 43-2330.1, the “Compiler’s Notes” following § 43-2330.1 state that “[t]his section, or portions thereof, may have been impliedly repealed by the Criminal Code of 1976.” See Notes by the Arkansas Statute Revision Commission, 4A Arkansas Statutes 1947 Annotated, at p. 316.
. The definition of a habitual offender and the terms of imprisonment which may be imposed upon habitual offenders are found in Ark.Stat. Ann. § 41-1001 (effective January 1, 1976). The prior provision, which was in effect at the time of Klimas’s trial, is found in Ark.Stat.Ann. § 43-2328.
. This case is, therefore, distinguished from those cases where all of the prior convictions submitted to the jury were necessary to support the jury’s findings. See, e. g., Wilburn v. State, 253 Ark. 608, 487 S.W.2d 600 (1972) (evidence of two prior felony convictions submitted to the jury; defendant sentenced by the jury as a “third offender”).
. The fact that an accused does not submit evidence contradicting that submitted by the prosecution does not, of course, eliminate the accused’s right to a jury trial. Where a statutory right to trial by jury exists, that right must be honored, “regardless of the heinousness of the crime charged [or] the apparent guilt of the offender * * Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). See also Braley v. Gladden, 403 F.2d 858, 860-861 (9th Cir. 1968).
. In Cox v. Hutto, 589 F.2d 394 (8th Cir., 1979), we held that the failure of the state trial judge to inquire into Cox’s knowledge of and consent to a stipulation of his prior convictions, filed by his counsel in a habitual criminal proceeding, deprived him of his constitutional rights. We remanded the case to the District Court for a determination of whether Cox sustained any prejudice from the defective stipulation of prior convictions. Such prejudice would be presumed unless the state could establish that it possessed evidence at the time of trial establishing the three prior convictions necessary to support Cox’s sentence. Cox’s right to a redetermination by jury of his habitual criminal conviction was not raised in that case and, thus, we did not address that issue.
. Ark.Stat.Ann. § 41-1001 states:
Sentence to imprisonment for felony — Extended term for habitual offender. — (1) A defendant who is convicted of a felony and who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies, may be sentenced to an extended term of imprisonment as follows:
(a) not less than ten (10) years nor more than fifty (50) years, or life, if the conviction is of a class A felony;
(b) not less than five (5) years nor more than thirty (30) years, if the conviction is of a class B felony;
(c) not less than three (3) years nor more than fifteen (15) years, if the conviction is of a class C felony;
(d) not exceeding seven (7) years, if the conviction is of a class D felony;
(e) upon conviction of an unclassified felony punishable by less than life imprisonment, not less than three (3) years more than the minimum sentence for the unclassified offense nor more than five (5) years more than the maximum sentence for the unclassified offense;
(f) upon conviction of an unclassified felony punishable by life imprisonment, not less than ten (10) years nor more than fifty (50) years, or life.
# * # # # #
(3) For the purpose of determining whether a defendant has previously been convicted or found guilty of two [2] or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt. A conviction or finding of guilt of an offense that was a felony under the law in effect prior to the effective date [January 1, 1976] of this Code shall be considered a previous felony conviction or finding of guilt.
Under the new Arkansas Criminal Code, burglary is a class B felony, and larceny is a class B or C felony. See Ark.Stat.Ann. §§ 41-2002, 41-2203.
Consideration of a burglary and the felony that was the object of the burglary as a single felony conviction for the purposes of the Habitual Criminal Act was instituted to prevent the precise situation which we find here:
Although prior to the Code’s enactment most circuit judges treated convictions for burglary and grand larceny as a single prior conviction for purposes of habitual offender sentencing, a few apparently considered such a disposition to constitute two convictions. To achieve some parity of treatment in calculating the number of prior convictions, subsection (3) consolidates a burglary and the offense that was its object into a single felony conviction for habitual offender purposes.
Arkansas Statute Revision Commission, “Commentary," 4 Arkansas Statutes 1947 Annotated, at p. 123.
. Section 41-102 of the Arkansas Criminal Code of 1975 provides:
Application of provisions. — (1) The provisions of this Code * * * shall govern the prosecution for any offense defined by this Code and committed after the effective date [January 1, 1976] hereof.
(2) Unless otherwise expressly provided, the provisions of this Code shall govern the prosecution for any offense defined by a statute not part of this Code and committed after the effective date hereof.
(3) The provisions of this Code do not apply to the prosecution for any offense committed prior to the effective date of this Code. Such an offense shall be construed and punished in accordance with the law existing at the time of the commission of the offense.
(4) A defendant in a criminal prosecution for an offense committed prior to the effective date of this Code may elect to have the construction and application of any defense to such prosecution governed by the provisions of this Code. * * *
(5) When all or part of a statute defining a criminal offense is amended or repealed, the statute or part thereof so amended or repealed shall remain in force for the purpose of authorizing the prosecution, conviction and punishment of a person committing an offense under the statute or part thereof pri- or to the effective date of the amending or repealing act.
It is unclear, under this section, whether a charge of habitual criminality is an “offense” and, if so, whether its “commission” in a case such as this would be at the time of the commission of the latest underlying felony (here, prior to the effective date of the Code) or at the time that an individual’s status as a habitual criminal is determined (here, at the time of the retrial of the habitual criminal charge). It is also unclear whether the fact that burglary and the larceny which was its object are considered to be a single offense under the new provisions of the Habitual Criminal Act could be argued to the jury in a retrial of Klimas under the old law, as a mitigation of his record and the degree of habitual criminality which the jury might find.
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_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.
UNITED STATES v. GRUBBS
No. 04-1414.
Argued January 18, 2006
Decided March 21, 2006
Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Solicitor General Clement, Assistant Attorney General Fisher, and Dan Himmelfarb.
Mark J. Reichel argued the cause for respondent. With him on the brief were Linda C. Harter and Jeffrey T Green.
Daniel L. Kaplan and Jeffrey L. Fisher filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance.
Ric Simmons filed a brief for the National Association of Federal Defenders as amicus curiae.
Justice Scalia
delivered the opinion of the Court.
Federal law enforcement officers obtained a search warrant for respondent’s house on the basis of an affidavit explaining that the warrant would be executed only after a controlled delivery of contraband to that location. We address two challenges to the constitutionality of this anticipatory warrant.
I
Respondent Jeffrey Grubbs purchased a videotape containing child pornography from a Web site operated by an undercover postal inspector. Officers from the Postal Inspection Service arranged a controlled delivery of a package containing the videotape to Grubbs’ residence. A postal inspector submitted a search warrant application to a Magistrate Judge for the Eastern District of California, accompanied by an affidavit describing the proposed operation in detail. The affidavit stated:
“Execution of this search warrant will not occur unless and until the parcel has been received by a person(s) and has been physically taken into the residence .... At that time, and not before, this search warrant will be executed by me and other United States Postal inspectors, with appropriate assistance from other law enforcement officers in accordance with this warrant’s command.” App. to Pet. for Cert. 72a.
In addition to describing this triggering condition, the affidavit referred to two attachments, which described Grubbs’ residence and the items officers would seize. These attachments, but not the body of the affidavit, were incorporated into the requested warrant. The affidavit concluded:
“Based upon the foregoing facts, I respectfully submit there exists probable cause to believe that the items set forth in Attachment B to this affidavit and the search warrant, will be found [at Grubbs’ residence], which residence is further described at Attachment A.” Ibid.
The Magistrate Judge issued the warrant as requested. Two days later, an undercover postal inspector delivered the package. Grubbs’ wife signed for it and took the unopened package inside. The inspectors detained Grubbs as he left his home a few minutes later, then entered the house and commenced the search. Roughly 30 minutes into the search, Grubbs was provided with a copy of the warrant, which included both attachments but not the supporting affidavit that explained when the warrant would be executed. Grubbs consented to interrogation by the postal inspectors and admitted ordering the videotape. He was placed under arrest, and various items were seized, including the videotape.
A grand jury for the Eastern District of California indicted Grubbs on one count of receiving a visual depiction of a minor engaged in sexually explicit conduct. See 18 U. S. C. § 2252(a)(2). He moved to suppress the evidence seized during the search of his residence, arguing as relevant here that the warrant was invalid because it failed to list the triggering condition. After an evidentiary hearing, the District Court denied the motion. Grubbs pleaded guilty, but reserved his right to appeal the denial , of his motion to suppress.
The Court of Appeals for the Ninth Circuit reversed. 377 F. 3d 1072, amended, 389 F. 3d 1306 (2004). Relying on Circuit precedent, it held that “the particularity requirement of the Fourth Amendment applies with full force to the conditions precedent to an anticipatory search warrant.” 377 F. 3d, at 1077-1078 (citing United States v. Hotal, 143 F. 3d 1223, 1226 (CA9 1998)). An anticipatory warrant defective for that reason may be “cur[ed]” if the conditions precedent are set forth in an affidavit that is incorporated in the warrant and “presented to the person whose property is being searched.” 377 F. 3d, at 1079. Because the postal inspectors “failed to present the affidavit — the only document in which the triggering conditions were listed” — to Grubbs or his wife, the “warrant was . . . inoperative, and the search was illegal.” Ibid. We granted certiorari. 545 U. S. 1164 (2005).
II
Before turning to the Ninth Circuit’s conclusion that the warrant at issue here ran afoul of the Fourth Amendment’s particularity requirement, we address the antecedent question whether anticipatory search warrants are categorically unconstitutional. An anticipatory warrant is “a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.” 2 W. LaFave, Search and Seizure § 3.7(c), p. 398 (4th ed. 2004). Most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time — a so-called “triggering condition.” The affidavit at issue here, for instance, explained that “[execution of th[e] search warrant will not occur unless and until the parcel [containing child pornography] has been received by a person(s) and has been physically taken into the residence.” App. to Pet. for Cert. 72a. If the government were to execute an anticipatory warrant before the triggering condition occurred, there would be no reason to believe the item described in the warrant could be found at the searched location; by definition, the triggering condition which establishes probable cause has not yet been satisfied when the warrant is issued. Grubbs argues that for this reason anticipatory warrants contravene the Fourth Amendment’s provision that “no Warrants shall issue, but upon probable cause.”
We reject this view, as has every Court of Appeals to confront the issue, see, e. g., United States v. Loy, 191 F. 3d 360, 364 (CA3 1999) (collecting cases). Probable cause exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U. S. 213, 238 (1983). Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, “anticipatory.” In the typical case where the police seek permission to search a house for an item they believe is already located there, the magistrate’s determination that there is probable cause for the search amounts to a prediction that the item will still be there when the warrant is executed. See People v. Glen, 30 N. Y. 2d 252, 258, 282 N. E. 2d 614, 617 (1972) (“[PJresent possession is only probative of the likelihood of future possession”). The anticipatory nature of warrants is even clearer in the context of electronic surveillance. See, e. g., Katz v. United States, 389 U. S. 347 (1967). When police request approval to tap a telephone line, they do so based on the probability that, during the course of the surveillance, the subject will use the phone to engage in crime-related conversations. The relevant federal provision requires a judge authorizing “interception of wire, oral, or electronic communications” to determine that “there is probable cause for belief that particular communications concerning [one of various listed offenses] will be obtained through such interception.” 18 U. S. C. §2518(3)(b) (emphasis added); see also United States v. Ricciardelli, 998 F. 2d 8, 11, n. 3 (CA1 1993) (“[T]he magistrate issues the warrant on the basis of a substantial probability that crime-related conversations will ensue”). Thus, when an anticipatory warrant is issued, “the fact that the contraband is not presently located at the place described in the warrant is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is executed.” United States v. Garcia, 882 F. 2d 699, 702 (CA2 1989) (quoting United States v. Lowe, 575 F. 2d 1193, 1194 (CA6 1978); internal quotation marks omitted).
Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure ¿/contraband should be delivered — though for any single location there is no likelihood that contraband will be delivered.) Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment’s requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs “there is a fair probability that contraband or evidence of a crime will be found in a particular place,” Gates, supra, at 238, but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination. See Garcia, supra, at 703.
In this case, the occurrence of the triggering condition— successful delivery of the videotape to Grubbs’ residence— would plainly establish probable cause for the search. In addition, the affidavit established probable cause to believe the triggering condition would be satisfied. Although it is possible that Grubbs could have refused delivery of the videotape he had ordered, that was unlikely. The Magistrate therefore “had a ‘substantial basis for . . . conclud[ing]’ that probable cause existed.” Gates, supra, at 238-239 (quoting Jones v. United States, 362 U. S. 257, 271 (1960)).
Ill
The Ninth Circuit invalidated the anticipatory search warrant at issue here because the warrant failed to specify the triggering condition. The Fourth Amendment’s particularity requirement, it held, “applies with fall force to the conditions precedent to an anticipatory search warrant.” 377 F. 3d, at 1077-1078.
The Fourth Amendment, however, does not set forth some general “particularity requirement.” It specifies only two matters that must be “particularly describ[ed]” in the warrant: “the place to be searched” and “the persons or things to be seized.” We have previously rejected efforts to expand the scope of this provision to embrace unenumerated matters. In Dalia v. United States, 441 U. S. 238 (1979), we considered an order authorizing the interception of oral communications by means of a “bug” installed by the police in the petitioner’s office. The petitioner argued that, if a covert entry is necessary to install such a listening device, the authorizing order must “explicitly set forth its approval of such entries before the fact.” Id., at 255. This argument fell before the “‘precise and clear’” words of the Fourth Amendment: “Nothing in the language of the Constitution or in this Court’s decisions interpreting that language suggests that, in addition to the [requirements set forth in the text], search warrants also must include a specification of the precise manner in which they are to be executed.” Ibid. (quoting Stanford v. Texas, 379 U. S. 476, 481 (1965)); 441 U. S., at 257. The language of the Fourth Amendment is likewise decisive here; its particularity requirement does not include the conditions precedent to execution of the warrant.
Respondent, drawing upon the Ninth Circuit’s analysis below, relies primarily on two related policy rationales. First, he argues, setting forth the triggering condition in the warrant itself is necessary “to delineate the limits of the executing officer’s power.” Brief for Respondent 20. This is an application, respondent asserts, of the following principle: “[I]f there is a precondition to the valid exercise of executive power, that precondition must be particularly identified on the face of the warrant.” Id., at 23. That principle is not to be found in the Constitution. The Fourth Amendment does not require that the warrant set forth the magistrate’s basis for finding probable cause, even though probable cause is the quintessential “precondition to the valid exercise of executive power.” Much less does it require description of a triggering condition.
Second, respondent argues that listing the triggering condition in the warrant is necessary to “ ‘assur[e] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.’” Id., at 19 (quoting United States v. Chadwick, 433 U. S. 1, 9 (1977)). The Ninth Circuit went even further, asserting that if the property owner were not informed of the triggering condition, he “would ‘stand [no] real chance of policing the officers’ conduct.’ ” 377 F. 3d, at 1079 (quoting Ramirez v. Butte-Silver Bow County, 298 F. 3d 1022, 1027 (CA9 2002)). This argument assumes that the executing officer must present the property owner with a copy of the warrant before conducting his search. See 377 F. 3d, at 1079, n. 9. In fact, however, neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 imposes such a requirement. See Groh v. Ramirez, 540 U. S. 551, 562, n. 5 (2004). “The absence of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until the search has ended, is ... evidence that the requirement of particular description does not protect an interest in monitoring searches.” United States v. Stefonek, 179 F. 3d 1030, 1034 (CA7 1999) (citations omitted). The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the “deliberate, impartial judgment of a judicial officer . . . between the citizen and the police,” Wong Sun v. United States, 371 U. S. 471, 481-482 (1963), and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages.
Hs * *
Because the Fourth Amendment does not require that the triggering condition for an anticipatory search warrant be set forth in the warrant itself, the Court of Appeals erred in invalidating the warrant at issue here. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Alito took no part in the consideration or decision of this case.
This issue is “predicate to an intelligent resolution of the question presented.” Ohio v. Robinette, 519 U. S. 33, 38 (1996) (internal quotation marks omitted). It makes little sense to address what the Fourth Amendment requires of anticipatory search warrants if it does not allow them at all. Cf. Wilkinson v. Austin, 545 U. S. 209, 221 (2005) (addressing whether inmates had a liberty interest in avoiding assignment to a “Super-max” prison, despite the State’s concession that they did, because “[w]e need reach the question of what process is due only if the inmates establish a constitutionally protected liberty interest”).
For this reason, probable cause may cease to exist after a warrant is issued. The police may learn, for instance, that contraband is no longer located at the place to be searched. See, e. g., United States v. Bowling, 900 F. 2d 926, 932 (CA6 1990) (recognizing that a fruitless consent search could “dissipat[e] the probable cause that justified a warrant”). Or the probable-cause showing may have grown “stale” in view of the time that has passed since the warrant was issued. See United States v. Wagner, 989 F. 2d 69, 75 (CA2 1993) (“[T]he facts in an affidavit supporting a search warrant must be sufficiently close in time to the issuance of the warrant and the subsequent search conducted so that probable cause can be said to exist as of the time of the search and not simply as of some time in the past”); see also Sgro v. United States, 287 U. S. 206, 210-211 (1932).
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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songer_appel1_1_3
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H
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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.
WEST PENN POWER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.
No. 14555.
United States Court of Appeals Third Circuit.
Argued Feb. 3, 1964.
Decided Nov. 3, 1964.
Donald B. Heard, Reed, Smith, Shaw & McClay, Pittsburgh, Pa. (Nicholas Unkovic, James Q. Harty, Pittsburgh, Pa., Charles L. McCormick, Greensburg, Pa., on the brief), for petitioner.
Allen M. Hutter, N. L. R. B„ Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Lee M. Modjeska, Attorney, N. L. R. B., on the brief), for respondent.
Before McLAUGHLIN, GANEY and SMITH, Circuit Judges.
GANEY, Circuit Judge.
This is a petition for review and setting aside of two orders issued by the National Labor Relations Board. The order, dated August 12, 1968, in Case No. 6-CA-2644, directed the West Penn Power Company to cease and desist from refusing to bargain with the Utility Workers Union of America, System Local No. 102, AFL-CIO, concerning wages, hours and working conditions of the Company’s employees classified as Transmission and Distribution Supervisors.
The above order was based upon a determination by the Board on November 7, 1962, in Case No. 6-RC-846, as the result of a motion for clarification and/or amendment of the certification filed by the Company on February 6, 1962, wherein the Board held that the Transmission and Distribution Supervisors were employees within the meaning of the definition of “employee”, as set out in § 2(3) of the Labor Management Relations Act, 29 U.S.C.A. § 152 (3), and were not supervisors within the meaning of § 2(11) of that Act, 29 U.S. C.A. § 152(H).
The court has jurisdiction here since the alleged unfair labor practices occurred in Springdale and Charleroi, Pennsylvania, within this judicial circuit.
The West Penn Power Company will hereinafter be referred to as the “Company”, the Utility Workers Union of America will be referred to as the “Union” and the Transmission and Distribution Supervisors will be referred to as the “T & D Supervisors.”
The Company is a public utility distributing and selling electrical energy in 18 counties in western and north central Pennsylvania for residential, commercial and industrial purposes and is engaged in interstate commerce within the meaning of the Labor Management Relations Act, as amended. It serves approximately 390,000 customers and since 1930, the number of these has more than doubled and the number of employees has steadily increased. There are presently five steam generating plants and one hydro station operated by the Company.
In 1944, the Board, after hearing, certified the Union as the bargaining representative “of all load dispatchers of West Penn Power Company, in the Spring-dale Power Station, and the Charleroi Substation, Pittsburgh, Pennsylvania, excluding all supervisoiy employees * * *, as their representative for the purposes of collective bargaining, *
In 1946, the Dispatchers as a group withdrew from the Union, but in 1951, as the result of a consent election, the Company again recognized the Union as the collective bargaining representative of “all load dispatchers of the West Penn Power Company who are located in the Springdale, Pennsylvania Power Station and Charleroi, Pennsylvania Dispatching Center: Excluding All other employees and guards, professional employees and supervisors, as defined in the National Labor Relations Act, as amended.”
The labor agreement entered into and between the Company and the Union included all “Load Dispatchers” among the groups for recognition. These included the first and second load dispatchers in Charleroi and the load dispatchers in Springdale, before September 1, 1960. The load dispatchers at Springdale and the second load dispatchers at Charleroi were responsible for transmission and distribution of power from the generating stations to the substations. The substations broke down the power to lower voltages for distribution to the Company’s customers. On September 1, 1960, a program of decentralization was entered into by the Company and three new operating centers were opened at Arnold and Connellsville, Pennsylvania, and the previous job classification of operating instructors, who were not included in the collective bargaining unit, the Charleroi second load dispatchers, and Springdale load dispatchers, were eliminated. Earlier, in a management bulletin issued on March 31, 1960, telling of the coming change on September 1, 1960, it stated that because of the dispatchers’ knowledge of operating practices, it was expected that with training in management functions and supervisory skills, most of the present load dispatchers would qualify for the new positions of Transmission and Distribution Supervisors. The Charleroi first load dispatchers were to be re-classified as power dispatchers, but with little change in their duties and responsibilities.
Under the provisions of the above mentioned agreement, entered into between the Company and the Union for the years 1956-1961, the Union filed a grievance petition, dated September 15, 1960, wherein they protested the Company’s refusal to bargain on behalf of the T & D Supervisors, as the Company held that the positions of the T & D Supervisors, newly created, placed them in the supervisory or management class and were not included in the collective bargaining unit. On November 17, 1960, the Union filed unfair labor practices against the Company for refusal to bargain with it on behalf of the T & D Supervisors, but the Acting Regional Director refused to issue a complaint, which action was sustained by the General Counsel of the National Labor Relations Board.
The Union continued to insist that it should be the collective bargaining agent for the T & D Supervisors and, as a result, the Company, on February 6, 1962, filed the motion for clarification and/or amendment of the certification of the Board on June 20, 1951, as heretofore adverted to.
Once again, the Union filed unfair labor practice charges against West Penn Power Company on December 10, 1962, because the Company refused to bargain with it on behalf of the T & D Supervisors. After a hearing was held on these charges, the Board, in its decision and order, adopted, with a modification, the Trial Examiner’s report that the Company had refused to bargain with the Union on December 5, 1962, regarding the new unit designated. The modification was that the unit was to include those T & D Supervisors at the two additional dispatching centers established in 1960, to wit, Connellsville & Arnold. From this order of the Board, the Company has filed this petition for review.
It is requisite that in order to resolve the issue here posed, the Congressional intent as to the meaning of the terms “employee” and “supervisor” is to be analyzed and the courts’ interpretation thereof carefully scrutinized since the factual data in each decided case before the Board and the appellate courts will be different and, of necessity, the meaning of the terms “employee” and “supervisor” has been subject to a great deal of litigation.
However, it is unnecessary here to definitively circumscribe the orbit of the terms “employee” or “supervisors” as it is apparent Congress fully appreciated that such relationships could not be placed in separate categories or that technical concepts of the terms should be controlling, but that there should be taken into consideration the broad intendment of the Act. As its first section sets out, it is designed to eliminate “substantial obstructions to the free flow of commerce” resulting from “strikes and other forms of industrial strife or unrest.”
It is in this context that we proceed to determine whether, under the factual situation here presented, the rule in Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, has been complied with and whether, on the record as a whole, there is substantial evidence to support the Board’s findings. Accordingly, examining the record as a whole, the conclusion is reached that this court “cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” Universal Camera Corp. v. N. L. R. B., supra, at 488, 71 S.Ct. at 465.
It has been settled by many court decisions, an employee must be defined as a supervisor if he exercises any one of the powers set forth in § 2(11) of the Act. Servette, Inc., v. N. L. R. B., 9 Cir., 310 F.2d 659, 664. This section does not require the powers described be exercised during any definite part of the employee’s time. It is the existence of the power which detei'mines the classification of whether an individual is an employee or a supeiwisor. Ohio Power Co. v. N. L. R. B., 6 Cir., 176 F.2d 385, at 388, 11 A.L.R.2d 243; N. L. R. B. v. Fullerton Publishing Co., 9 Cir., 283 F.2d 545, at 548; N. L. R. B. v. Whitin Machine Works, 1 Cir., 204 F.2d 883; N. L. R. B. v. Leland-Gifford Co., 1 Cir., 200 F.2d 620. It was said by this Court in N. L. R. B. v. Beaver Meadow Creamery, Inc., 3 Cir., 215 F.2d 247, though it affirmed the Board’s action under the particular facts obtaining there that the individual was not a supervisor, that “We quite agree that Section 2(11) must be read disjunctively, that the possession of any one of the Section 2(11) powers will make one a supervisor, and that it is the fact of possession of the power regardless of its nonexercise that, is determinative.” (p. 251). While it is agreed that some cases point out that, the mere responsibility of making work assignments in a routine fashion does, not make an employee a supervisor, Precision Fabricators, Inc. v. N. L. R. B., 2 Cir., 204 F.2d 567, nor the mere fact that he spends a portion of his time instructing less experienced employees, N. L. R. B. v. Valentine Sugars, 5 Cir., 211 F.2d 317, nor that the assumption of some supervisory authority during a temporary period does not bring the employee within the definition, N. L. R. B. v. Stewart, 5 Cir., 207 F.2d 8; Poultry Enterprises, Inc. v. N. L. R. B., 5 Cir., 216 F.2d 798, nevertheless, these conditions do not present themselves here.
The duties of the T & D Supervisors, after September 1, 1960, went further since they were charged with the responsibility of directing and supervising the conduct of men and, in their nature, they were more related to managerial and company functions than to those of ordinary employees. This conclusion is reached if we use as a guide that approach taken in Local 636, etc., Plumbing & Pipe Fit. Ind. of the United States v. N. L. R. B., 109 U.S.App.D.C. 315, 287 F.2d 354, 362, wherein the court held, as some criteria, the following: “(1) The nature of the supervisory position; how completely the responsibilities of the particular position identify the holder of the position with management. Careful reference should be made to § 2(11), (Act of 1947) bearing in mind that the definition therein contained was not. intended to include 'straw bosses’ and leadmen. Such consideration is necessary because of the infinite possible variations in responsibilities enumerated in § 2(11). (2) Apparent permanence of the supervisory position; * * *. (3) The extent to which his position is properly included in or excluded from the bargaining unit. * * * ”
The Board, in finding that the duties required of the T & D Supervisors did not make them supervisors within the meaning of the Act, relied on N. L. R. B. v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170. It was primarily this decision which led to the 1947 amendment of the Act, N. L. R. B. v. A. S. Abell Co., 4 Cir., 327 F.2d 1, 4, and, accordingly, the case is no longer authoritative on the definition of an employee, although the main impact of the amendment was the distinguishing of an employee from an independent contractor.
In N. L. R. B. v. Quincy Steel Casting Co., 1 Cir., 200 F.2d 293, another case relied upon by the Board, the factual situation obtaining there is entirely different from that of the instant case, inasmuch as the employee was a molder the greater portion of his working time and there was evidence in the record that any skilled molder was competent to handle the job and that other workers engaged with him testified that the operation was more or less routine. In the case of the other employee, the record showed that he had no full-time employees working under him and, in answer to a question whether in supervising the core room where he was employed, he testified, “That’s right, I am in full charge of myself.” regarding himself only as one of the workers, rather than a supervisor.
Another case relied on, N. L. R. B. v. Leland Gifford Co., supra, gives the Board no support for its position, since, 200 F.2d at 625, it is held, “On the other hand, we think the statute does mean that once an individual has actually been clothed with genuine power to perform a supervisory function, he thereupon becomes a ‘supervisor,’ even before an opportunity arises to exercise his power, and even though he may not often find it necessary to exert the power conferred. That is to say, one clothed with real power to discipline other employees, for instance, would be ipso facto a ‘supervisor,’ even though in a particular instance months, or perhaps in rare eases even years, might pass before any occasion ever arose calling for an exercise of the power.”
Another case relied upon by the board is N. L. R. B. v. Beaver Meadow Creamery, Inc., supra. There, the factual situation is, in no wise, comparable to that which obtains here for the reason that this case concerned itself with the discharge of an employee for attempting to organize a union to represent his fellow employees and the Board found that this was a discriminatory discharge in violation of § 8(a) (3) and (1) of the Act, 29 U.S.C.A. § 158(a) (1) (3). However, in discussing the finding of an unfair labor practice, the court, as we have already indicated, supra, 215 F.2d at 251, said that it is the fact of the possession of the power, as we have adverted to earlier, that is determinative of status.
However, the facts in the instant case show much greater authority and the requisite for independent judgment on the part of the T & D Supervisors than the previous position of either type of load dispatchers at either Charleroi or Springdale and, as we have indicated, the duties are more closely applied with management than with their fellow employees.
In the determination of whether or not the T & D Supervisors should be excluded from the bargaining unit, great weight must be attached to the job description of the T & D Supervisors, as set out by the Company, wherein they are required to determine action, assign and direct employees on approved call-out lists to maintain or restore industrial, commercial and residential customer service, as well as decide when an employee’s request for excuse from overtime assigned will be granted, and gives authority within the district after daylight hours, which will be pointed out hereafter. These duties, while not completely new, gave to them a much wider latitude of authority and responsibility in the direction of the Company’s affairs than they ever possessed as second load dispatchers at Charleroi or load dispatchers at Springdale.
In the job description covering services required of the T & D Supervisors, since September 1, 1960, the duties required are:
(1) “Assign and direct the work of communications technicians.” This is a new responsibility for the T & D Supervisors, in that this work previously had been done by the division operating superintendent. Additionally, they were to give instructions to company and customer employees in the operation of communications equipment which, likewise, was an additional duty not performed previously by the load dispatchers.
(2) “Recommend disciplinary action to be taken with employees engaged in switching and other related work when warranted and report operating errors and investigate as required. Participate in adjustment of Union first-level grievances or differences arising from work under his supervision.” All of these new duties assigned to T & D Supervisors are new responsibilities, with the exception of reporting on operating errors, and are more managerial than routine.
(3) “Appraise employee work performance in assigned area of responsibility; determine eligibility for operating ; and recommend changes in employee classification.” All of these responsibilities are new and were not previously performed by the load dispatchers and are more managerial than routine.
(4) “Prepare and recommend material for instruction manuals. * * * ” This was a new duty not performed by the former load dispatchers and is a function requiring the use of independent judgment.
(5) “Keep the Supervisor of Operations — Division informed on the status of division operating and supervisory control activities.” This is a new responsibility imposed on the.T & D Supervisors and was done previously by the supervisor of operations who was part of management.
(6) “Confer with district operating personnel to coordinate and arrange outages of lines, substations, and communications facilities; operating instructions ; layout and changes of lines; names for switches, circuits, and substations. Assist district operating personnel in the investigation of customer operating problems, as required.” These were all additional responsibilities imposed on the T & D Supervisors that they did not possess as load dispatchers, with the exception of the naming of switches, which the former load dispatchers had something to do with, though very little.
(7) “Consult with other supervisory control centers with respect to planned outages, information on load conditions, temperature, unsafe conditions, switching and interruptions to service; and keep them informed on changes in operating instructions.” As load dispatchers, they exchanged weather data among various dispatchers, but this is the first time they had authority for this type of thing, especially with respect to planned outages.
(8) “Contact industrial and commercial customers to arrange service interruptions, train and examine customer employees in operating of switching equipment, direct required switching, and coordinate work progress.” These were new responsibilities.
Additional duties which the new T & D Supervisors now possess, not permitted before, are that they may now make management decision on whether they can reconnect or disconnect a customer who is either delinquent or has a problem in respect to his electricity, so they now have complete authority in the customer relations’ authority of the district, and at the close of the district office at five o’clock at night, the T & D Supervisors are in complete charge of the entire district and work twenty-four hours a day, around the clock. As has been indicated, while the T & D Supervisors assume many of the jobs formerly done by the load dispatchers, there are many additional supervisory duties added to the new job, such as the taking over of the duties of operating instructors who were formerly never included within the bargaining unit which was certified. Furthermore, only a supervisor can rate an employee and this is of particular significance since it does affect the pay of all union employees.
When there is a prearranged or scheduled outage, which the T & D Supervisors are to follow and something else arises, it is the duty of the supervisors to determine whether or not the prearranged work should be performed or whether some other work should be done in its place, and they have the final authority for the lines and the operation and maintenance of them in their district and, if a supervisor feels that he wants to call off a line crew that is doing prearranged work, he may do so or he may refuse if he feels it is in the best interest of the Company and he has authority to do it without any further consultation,
k Additionally, he has the authority to reconnect customers with service by using his own discretion and judgment without checking with anybody else. Further, they have the authority to hire and fire but, at the time of the hearing before the Board, very little time had elapsed for the exercise thereof.
With respect to vacations, the T & D Supervisors operate under the supervisory plan and can schedule their vacations whenever they want, as long as it meets with the wishes of their supervisor. The supervisory employees also enjoy a more liberal medical plan than the union employees and the major medical plan applies to supervisors and is not in effect for union people so that if a person were formerly a second load dispatcher, he would now have this plan when he became a T & D Supervisor.
Previous to their being appointed T & D Supervisors, they were called together and advised that they were supervisors and had certain duties and obligations to perform because, under the old set-up when most of them were second load dispatchers, the prearranged work would come in and they would make out the sheets, but they were not the final authority on them, as each sheet was checked by the chief load dispatcher who was the final authority, but, under the new arrangement, the T & D Supervisors have final authority.
Another additional responsibility of the T & D Supervisor is that he has the authority, without consulting anybody else, on his own, to determine whether or not a line can be de-energized on a particular day and for what particular period. Additionally, when a request is made for repairs or maintenance performed on equipment, the line foreman makes a request to the T & D Supervisor to take that piece of equipment out on a certain time and a definite day and he analyzes the request and he can either consent or not that it be done on a particular day and he is the final authority as to whether or not it is to come out of service and when.
As testified to by Paul Goberni, who had previously been an operating instructor and was now a T & D Supervisor —the job of operating instructor became absorbed in the T & D supervisor position — he must go out in the field and instruct in switching and in the grading of the men whom he instructs and as a result of his exercise of independent judgment, he can qualify an individual in rating him or disqualify him which would result in his failure to receive an increase in pay or go on to a higher classification.
In connection with communications technicians where, for instance, a radio was out of order, the T & D Supervisor calls a communications technician to repair the same and, while he is not acquainted with the complexities of the job to be performed, it would be up to him to see that the job was correctly done. While he may not possess the technical knowledge of the communications technicians, this is true in many supervisory capacities where an executive is not possessed of - the technical knowledge of those under his supervision.
One, George W. Wilson, a T & D .Supervisor, when questioned on cross-examination as to the differences between the new job he was now performing and the duties he had to perform as load dispatcher at Springdale or first and second load dispatchers at Charleroi, he answered that the communications technicians reported to him directly every morning so that he knew what he was going to be doing and, in the case of trouble, he would assign them work. Further, that he had sole responsibility in his division of the distribution of power on all 25 to 132 KV lines, that he never had authority to call out linemen as a second load dispatcher, that he had to deal directly with the district operating superintendent. He also testified that previously, as a second load dispatcher, he could not take a customer off a single-feed line without getting permission from the district operating superintendent, and now under the new duties assigned to him, he could take a customer off a single-feed line without getting anybody else’s permission. Further, that he had the authority to recommend individuals for promotion, such as an operating technician whom he recommended for promotion and who was promoted. He has the power now to recommend, with respect to lay-offs and discharges, although he could not discharge on the spot. Further, he plans the monthly work schedule for two communications technicians and after making them out, sends them out to them.
Paul Irvin, a T & D Supervisor, assigned to the New Kensington District, testified with respect to operating instructions which were part of his duties. He would set up a case of trouble and question the employee along that line ■ and, if he felt he was qualified after he made his answers, he would either pass him or reject him. He likewise testified that he had the power to deviate from prearranged work plans for linemen and this was usually done wherever, in his judgment, a hazard might possibly be created. Further, as a T & D Supervisor, he trained linemen, servicemen and substation men which he did not do as a load dispatcher at Springdale; he participated in planning in the district; he would meet with district personnel to discuss the planning set up in the district and took care of the writing of manual material which he had never done before as a load dispatcher; and that he had authority now to man the district where before it was necessary for him to call the district supervisor and recommend that it be manned. Furthermore, that the T & D Supervisors are the only people that are available and capable of operating the distribution system of the Company during the weekends and on all shifts other than the daylight shifts. They are the only people in the Company that train and determine switching eligibility for lines and substations and the only ones that can handle customer compliants on all shifts, other than the daylight shift, with the complete authority to reconnect customers, if they so choose.
A fair assessment here finds the Board’s order unsubstantiated, in considering the record as a whole. That record discloses that the new position of T & D Supervisor embodies a new concept in the authority to be exercised over and above that which was done previously by the load dispatchers at Charleroi and Springdale and, additionally, that it shows the new duties and responsibilities entailed in the position require the exercise of independent judgment and, in most instances, the authority to responsibly direct the individuals under their control.
Accordingly, it is Ordered, Adjudged and Decreed,
(1) That the Board’s certification entered November 7, 1962, be vacated and set aside to the extent that the T & D Supervisors were to be included in such bargaining unit; (2) That the finding of the Board dated August 12, 1963, that the petitioner was guilty of unfair labor practices in refusing to bargain with the representatives of a unit which included all T & D Supervisors is likewise vacated and set aside; and (3) That the Board’s order for enforcement of the same dated August 12, 1963, is herewith denied.
. This sub-section reads as follows:
“(3) The term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at Ms home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined.”
. This sub-section reads as follows:
“(11) The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
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_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Appellant, v. CROSLAND CONSTRUCTION COMPANY, Inc., Pacific Employers Insurance Company, and American Indemnity Company, Appellees.
No. 6891.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 18, 1954.
Decided Dec. 1, 1954.
Fred E. Youngman, Sp. Asst. to Atty. Gen. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack and A. F. Prescott, Sp. Assts. to Atty. Gen., N. Welch Morrisette, Jr., U. S. Atty., and Irvine F. Belser, Jr., Asst. U. S. Atty., Columbia, S. C., on the brief), for appellant.
Thomas E. McCutchen, Columbia, S. C., (Whaley & McCutchen and Hoover C. Blanton, Columbia, S. C., on the brief), for appellees Pacific Employers Ins. Co. and American Indemnity Co.
' Before PARKER, Chief Judge, SOP-ER, Circuit Judge, and THOMSEN, District Judge.
THOMSEN, District Judge.
The only question presented by this appeal is whether the sureties on a bond eonditiofied that “the principal shall promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in” a contract between the Crosland Construction Company, Inc. (the principal) and the Newberry County Memorial Hospital of Newberry, South Carolina (the obli-gee) for the construction of certain alterations and additions to said hospital, are liable to the United States under that bond for federal income withholding taxes under Sec. 1622 et seq., I.R.C., Title 26 U.S.C.A. and Federal Insurance Contributions Act taxes under Sec. 1400 et seq., I.R.C., which were deducted and withheld by the principal from wages paid to employees engaged in the performance of said contract, but not paid over to the Government as required by law.
Other claims in addition to the one pressed on this appeal were made against the principal and the sureties in the amended complaint filed by the Government in the district court. The sureties moved for an order dismissing that complaint as to them on the ground that it failed to state a claim upon which relief could be granted. The district judge treated that motion as a motion for summary judgment, under Rule 12(b), Fed. R.Civ.P., 28 U.S.C.A., heard arguments based on the pleadings and affidavits submitted by the parties, and filed an opinion and order entering judgment in favor of the sureties. U. S. v. Crosland Construction Co., Inc., D.C., 120 F.Supp. 792. From that order and judgment the Government has appealed, but is pressing only the question stated above.
The parties do not contend that the language of the bond is extended or limited by any contract provision or statute. The question is simply whether the Government’s claim is covered by the terms of the bond, quoted above.
The relevant statutes and regulations are set out in the note below. From a consideration of all of them, we conclude, as did the majority of the Tenth Circuit in United States Fidelity & Guaranty Co. v. U. S., 201 F.2d 118:
“ * * * that when an employer withholds the tax from an employee’s wage and pays him the balance the employee has been paid in full. He has received his full wage. Part of it has gone to pay his withholding tax and the balance he has. The employer has discharged his contrae-tual obligation to pay the full wage. Thereafter there remains only his liability for the tax which he has collected. That is a tax liability for which he alone is liable to the Government as for any other taxes which he may owe.” 201 F.2d at page 120.
That decision was adhered to by the Tenth Circuit in U. S. v. Zschach Construction Co., 209 F.2d 347, and followed by the Ninth Circuit in Westover v. William Simpson Construction Co., 209 F.2d 908 and Fireman’s Fund Indemnity Co. v. U. S., 210 F.2d 472, and by the Fifth Circuit in General Casualty Co. of America v. U. S., 205 F.2d 753. It is supported by Central Bank v. U. S., 345 U.S. 639, 73 S.Ct. 917, 97 L.Ed. 1312, in which it was held that the Government’s claim against the contractor for amounts withheld could not be set off against amounts due the contractor’s assignee because of the provision of the Assignment of Claims Act, 54 Stat. 1029, 31 U.S.C.A. § 203, that “ ‘such payments shall not be subject to reduction or set-off for any indebtedness of the assignor to the United States arising independently of such contract.’ ” The Supreme Court said:
“The requirement that Graham withhold taxes from the ‘payment of wages’ to its employees and pay the same over to the United States did not arise from the contract. The requirement is squarely imposed by §§ 1401 and 1622 of the Internal Revenue Code. Without a government contract Graham would owe the statutory duty to pay over the taxes due, just as it would to pay its income tax on profits earned. Graham’s embezzlement lay neither in execution nor in breach of the contract. It arose from the conversion of the withheld taxes which Graham held as trustee for the United States pursuant to § 3661 of the Code. Assignor Graham’s indebtedness to the United States arose, we think, ‘independently’ of the contract.” 345 U.S. at pages 645, 646, 73 S. Ct. at page 920.
We agree with the Fifth Circuit: “Though measured by the amount of wages, the money due the United States was owing as taxes and not as wages.” General Casualty Co. of America v. U. S., 205 F.2d at page 755. Such a claim is not covered by the bond in this case. The judgment of the District Court must be
Affirmed.
. There were two bonds given by the principal and the sureties to the obligee —one a performance- bond in the u-sual form, the other a payment bond conditioned as set out above. The perform-anee bond was involved in some of the ' questions discussed in the district court; the claim pressed on this appeal is under the payment bond.
. Internal Revenue Code of 1939, as amended, Title 26 U.S.C.A. § 35, 57 Stat. 126; § 322(a) (2), 58 Stat. 231; § 1400 et seq., 61 Stat. 793, 64 Stat. 477, esp. §§ 1401, 1402, 1427, 1430; § 1608, 53 Stat. 188; § 1622 et seq., 57 Stat. 126, 62 Stat. 110, 64 Stat. 906, esp. §§ 1622(a) (d) (e), 1623, 3627; § 3661, 53 Stat. 448. T. R. 116, See. 405.301. T.R. 128, Sec. 408.304.
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_district
|
B
|
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".
The UNIVERSITY OF MARYLAND AT BALTIMORE; Andrew R. Burgess, M.D.; Sea Quest Inc., for themselves and all others similarly situated; The School Board of Palm Beach County, Florida, for themselves and all others similarly situated v. PEAT, MARWICK, MAIN & COMPANY Constance B. Foster, Insurance Commissioner of the Commonwealth of Pennsylvania, as Rehabilitator of The Mutual Fire, Marine and Inland Insurance Company, Intervenor (in District Court), The University of Maryland at Baltimore; Andrew R. Burgess, M.D.; Sea Quest, Inc.; and The School Board of Palm Beach County, Florida; and Richard A. Brown, Esq.; and Spiegel & McDiarmid *, Appellants.
No. 91-1889.
United States Court of Appeals, Third Circuit.
Argued May 4, 1992.
Decided June 22, 1993.
John W. Frazier, IV (argued), John E. Caruso, Richard G. Placey, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, Leonard P. Novello, Claudia L. Taft, Frances J. DiSarro, KPMG Peat Marwick, New York' City, for appellee.
Susan H. Malone, Richard DiSalle, Roger Curran (argued), Rose, Schmidt, Hasley & DiSalle, Pittsburgh, PA, James S. Gkonos, Mut. Fire, Marine & Inland Ins. Co., Philadelphia, PA, for intervenor.
Jeffrey R. Babbin, Richard A. Brown, Spencer L.. Kimball, Spiegel & McDiarmid, Washington, DC, Robert S. Kitchenoff, David H. Weinstein (argued), Harold E. Kohn, Kohn, Klein, Nast & Graf, Philadelphia, PA, for appellants.
Before: BECKER, SCIRICA and NYGAARD, Circuit Judges.
Pursuant to F.R.A.P. 12(a).
This case was originally argued before the panel of Judges Becker, Nygaard and Higginbotham on May 4, 1992, and the panel was reconstituted to the panel of Judges Becker, Scirica and Nygaard \ since Judge Higginbotham retired after the alf,'; gued date. \
OPINION OF THE COURT
NYGAARD, Circuit Judge.
When Mutual Fire, Marine & Inland Insurance Company went into statutory rehabilitation, it triggered various insolvency proceedings and- suits in state and federal courts, and satellite litigation concerning the conduct of some attorneys in the proceedings. The Commonwealth Court of Pennsylvania dealt primarily with Mutual Fire’s insolvency. While that was progressing, four individually named plaintiffs filed a class action in federal district court against Peat, Marwick, Main & Company, alleging that Peat Marwick performed materially deficient audits of Mutual Fire. The plaintiffs pleaded various causes of action based on state law and a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq.
The attorneys who instituted this action, Richard Brown and his law firm Spiegel & McDiarmid (the plaintiffs’ attorneys), had participated in Mutual Fire’s rehabilitation proceedings. Since they were bound by various supervisory and confidentiality orders issued by the Commonweálth Court in the insolvency proceedings, and since they may have violated these orders by filing this action, the Insurance Commissioner of Pennsylvania, acting in her capacity as Mutual Fire’s statutory receiver, brought state contempt proceedings against them.
After we revei'sed the district court’s decision to abstain under the Burford abstention doctrine, the district court denied the plaintiffs’ motion for Rule 11 sanctions and their attorneys’ motion for injunctive relief against the state contempt proceedings. It then granted Peat Marwick’s motion to dismiss the complaint for failure to state a claim. The plaintiffs and their attorneys appeal. We will reverse that portion of the district court’s order dismissing the state claims with prejudice and affirm the balance.
I.
In 1986, the Commonwealth Court ordered Mutual Fire into rehabilitation and appointed the Insurance Commissioner as statutory receiver. The rehabilitation order prohibited any actions against Mutual Fire or its property in any court in Pennsylvania.
At the request of five corporate policyholders, two of whom were represented by Attor- ^' ney Brown, the Commonwealth Court estab- ,; lished a Committee of Policyholders and au- y thorized the Committee’s costs, including at-, 1 torney’s fees, to be charged to Mutual Fire’s;! estate. The court later issued a supervisory ¡ order declaring its exclusive jurisdiction “to , j hear and determine all disputes concerning claims and the collection of assets of Mutual ■' Fire.” It also issued a confidentiality order ’ requiring all information submitted by Peat .Marwick to “be used solely for purposes of the Mutual Fire rehabilitation and/or liqui- ' dation proceedings.” Attorney Brown was bound by this order. .
Attorney Brown and the accounting firm of •; Price Waterhouse, whom he had hired as a consultant, investigated the claims against^ Peat Marwick. He and Price Waterhouse,' submitted bills in excess of $2 million to ■ Mutual Fire’s estate. The Commonwealth'' Court eventually dissolved the Committee, concluding that its costs to the Mutual Fire’s estate could no longer be justified. Grode v. Mutual Fire, Marine & Inland Ins. Co., 132 Pa.Cmwlth. 196, 572 A.2d 798, 810-11 (1990).
In 1988, the Insurance Commissioner, Constance Foster, filed a Praecipe for Writ of Summons against Peat Marwick in connection with its audits of Mutual-Fire’s books. She selected the law firm of Rose, Schmidt, Hasley & DiSalle to prosecute the action. Rose Schmidt filed a complaint with the Commonwealth Court, alleging that Peat Marwick improperly reported Mutual Fire’s financial conditions for several years and estimating shareholders’ damages to be over $350 million.
In 1989, without notice to the Commonwealth Court or the Commissioner, the plaintiffs’ attorneys filed this class action against Peat Marwick on behalf of the University of Maryland at Baltimore, Andrew Burgess, M.D., Sea Quest, Inc., and the School Board of Palm Beach County, who collectively sought to represent some 20,000 Mutual Fire policyholders. The plaintiffs alleged that Peat Marwick performed materially deficient, false and misleading financial audits of Mutual Fire and without reasonable basis certified Mutual Fire’s financial statements. Those statements represented that Mutual Fire was adequately financed when it was not. The Commissioner filed a similar suit in the Commonwealth Court against Peat Marwick on behalf of, among others, Mutual Fire and its policyholders for breach of contract, negligence, malpractice, and misrepresentation. The plaintiffs then amended their complaint to allege negligence per se, fraud, negligent misrepresentation, negligence, actions in concert, and a violation of RICO.
The Commissioner simultaneously sought leave to intervene in the district court, and filed a petition in the Commonwealth Court for a rule upon plaintiffs’ attorneys to show cause why they should not be held in contempt for filing this federal suit, which she contended violated the supervisory and confidentiality orders of the Commonwealth Court.
After the district court allowed the Commissioner to intervene, there was a flurry of motions for various forms of relief. The Commissioner moved to dismiss the action based on a purported conflict between the federal and state proceedings. Peat Mar-wick moved to dismiss the amended complaint on the basis of, among other things, $the statute of limitations and failure to state '’;,a' claim. The plaintiffs’ attorneys moved to enjoin the state contempt proceedings against them.
The district court granted the Commissioner’s motion to dismiss based on the Bur-ford abstention doctrine and denied the plaintiffs’ attorneys’ motion for an injunction as moot. University of Maryland v. Peat, Marwick, Main & Co., 736 F.Supp. 643 (E.D.Pa.1990). It did not rule on Peat Mar-wick’s motion to dismiss. On appeal, we ruled that the Burford abstention doctrine did not apply. We vacated the district court’s abstention order and remanded the case. University of Maryland v. Peat, Marwick, Main & Co., 923 F.2d 265 (3d Cir.1991).
On remand, Peat Marwick and the Commissioner, through Richard DiSalle of Rose Schmidt, again moved to dismiss, and the plaintiffs again moved to enjoin the state contempt proceedings. The plaintiffs also moved for Rule 11 sanctions against Attorney DiSalle on the basis that we had in the first appeal considered and rejected the merits of the Commissioner’s renewed motion to dismiss.
The district court denied the Commissioner’s motion to dismiss. It also denied the plaintiffs’ motion for sanctions and the plaintiffs’ attorneys’ motion for an injunction, believing that the pleadings “bear a closer resemblance to a retaliatory strike against Brown’s assorted foes than a serious motion for relief.” It granted Peat Marwick’s motion to dismiss because it opined that the RICO and state law claims were time-barred. Alternatively, it reasoned that the negligence claim was too attenuated to make out the necessary causation and reliance and that the RICO claim failed to allege a pattern of racketeering activity.
II.
Whether the district court properly-dismissed the plaintiffs’ amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a RICO claim is subject to plenary review, and we apply the same standard as the district court. Sames v. Gable, 732 F.2d 49, 51 (3rd Cir.1984). We construe the complaint liberally and take all material allegations as admitted. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969). All reasonable inferences are drawn in favor of the plaintiffs. Sturm v. Clark, 835 F.2d 1009, 1011 (3rd Cir.1987). We will not affirm the dismissal unless the plaintiffs could prove no set of facts that would entitle them to relief. D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3rd Cir.1984).
The essential facts pleaded are the following. Peat Marwick was Mutual Fire’s independent auditor, and it issued unqualified auditor’s opinions on Mutual Fire’s financial statements for the fiscal years ending December 31, 1979-84. The last opinion was issued before June 30, 1985. These opinions informed the public that Peat Marwick had a reasonable basis for concluding that Mutual Fire’s financial statements were accurate and that Mutual Fire was well-financed. In fact, the financial statements were false and misleading; liabilities were more and assets were less than reported. Peat Marwick ignored numerous signs of Mutual Fire’s precarious financial condition and had no reasonable basis to issue the unqualified opinions. The policyholders directly and indirectly, through their brokers and agents, chose Mutual Fire because they relied “substantially” on a “B + ” rating from A.M. Best Company, the leading insurance rating company. Best relied “primarily” on Mutual Fire’s financial statements, and Mutual Fire in turn depended heavily on a favorable rating from Best. On June 18, 1985, Best assigned Mutual Fire a “no rating.” In June 1986, Mutual Fire stopped paying claims, and in December of that year it was placed in rehabilitation.
Based on these allegations, the plaintiffs try to make out a RICO violation. Section 1962(c) makes it unlawful for “any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” Although a plaintiff must successfully plead many elements to bring a civil RICO claim, for the pur-poses of this appeal we need only consider whether Peat Marwick “participated” in the affairs of Mutual Fire, the alleged RICO enterprise.
We believe that Reves v. Ernst & Young, — U.S. -, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), is dispositive. Ernst & Young engaged in activities related to the valuation of a gasohol plant on the yearly audits and financial statements of a farming cooperative. Because the firm concluded for accounting-purposes that the co-op owned the gasohol plant from the beginning of construction rather than having purchased it later, the assets of the co-op were inflated. Although the solvency of the co-op depended on this conclusion, the firm did not tell the co-op’s board of directors of its conclusion or that without that conclusion the co-op was insolvent. The co-op as a result went bankrupt, and the trustees sued the accounting firm. The Court of Appeals for the Eighth Circuit summarized the accounting firm’s involvement with the co-op as “limited to the audits, meetings with the Board of Directors to explain the audits, and presentations at the annual meetings.” Arthur Young & Co. v. Reves, 937 F.2d 1310, 1324 (8th Cir.1991).
The Supreme Court addressed the validity of the Eighth Circuit’s “operation or management” test of participation in the affairs of an enterprise. Although RICO liability does not inure simply to those with primary responsibility for the enterprise’s affairs, just as it is not limited to those with formal positions in or those in the upper echelon of an enterprise’s management, the Court concluded that “to conduct or participate” in the affairs of a RICO enterprise one must, in some capacity, direct the affairs of the enterprise. — U.S. at-, 113 S.Ct. at 1170. It endorsed the “operation or management” test as sufficiently expressing the element of direction in an easy-to-apply formula. Id. Under this test, not even action involving-some degree of decisionmaking constitutes participation in the affairs of an enterprise. The accounting firm in Reven made a critical, erroneous decision that affected on the solvency of the co-op and did not tell the board of directors about it, thus prompting the dissent to characterize the firm as “functioning as the Co-op’s de facto chief financial officer.” Id. at-, 113 S.Ct. at 1177 (Souter, J., dissenting). Yet, even this decision-making did not rise to the level of directing an enterprise.
The plaintiffs first contend that the Revea test applies only in a summary judgment context because it dealt with “the quantum of proof necessary to find that an auditor actually participated in the conduct of its client’s affairs.” We disagree. The Revea Court nowhere suggested that the “operation or management” test is limited to the summary judgment context. In fact, the Court of Appeals for the Eighth Circuit first announced that legal standard in a motion to dismiss. See Bennett v. Berg, 710 F.2d 1361 (8th Cir.1983) (en banc). Other courts have applied various legal standards for participation and have dismissed complaints for failure to satisfy those standards. See, e.g., Blake v. Dierdorff, 856 F.2d 1365, 1371 (9th Cir.1988); Occupational Urgent Care Health Sys., Inc. v. Sutro & Co., Inc., 711 F.Supp. 1016, 1026-27 (E.D.Ca.1989); Plains/Anadarko-P Ltd. Partnership v. Coopers & Lybrand, 658 F.Supp. 238, 240 (S.D.N.Y.1987). We see no reason why we should not apply the Reves test on a motion to dismiss.
The plaintiffs primarily contend that they have sufficiently alleged that Peat Mar-wick participated in the affairs of Mutual Fire. They aver the following to show the relationship between Peat Marwick and Mutual Fire: (1) Peat Marwick performed deficient audits and issued unqualified auditor’s opinions; (2) Peat Marwick personnel attended a number of meetings of Mutual Fire’s board of directors; and (3) Peat Marwick performed other accounting and consulting-services from time to time, including services related to the computerization of certain accounting functions, to the purchase of an interest in a building occupied by Mutual Fire, and to the valuation and sale of a Mutual Fire reinsurance subsidiary. The Reves Court made clear that merely performing financial services and attending board meetings do not show that Peat Mar-wick was participating in the affairs of the enterprise.
The plaintiffs contend, however, that the additional services provided by Peat Marwick, such as computerization of accounting services and financial services in connection with the purchase of real estate and sale of a business, push its conduct over the threshold to participation in the affairs of an enterprise. We disagree. These services, like the audits, were merely financial services provided for Mutual Fire, just as lawyers or computer technicians may have provided valuable, indispensable services. Simply because one provides goods or services that ultimately benefit the enterprise does not mean that one becomes liable under RICO as a result. There must be a nexus between the person and the conduct in the affairs of an enterprise. The operation or management test goes to that nexus. In other words, the person must knowingly engage in “directing the enterprise’s affairs” through a pattern of racketeering activity. Reves, — U.S. at -, 113 S.Ct. at 1170 (emphasis added).
The plaintiffs have nowhere averred that Peat Marwick had any part in operating or managing the affairs of Mutual Fire. Although they make much ado about how important and indispensable Peat Marwick’s services were to Mutual Fire, the same can be said of many who are connected with Mutual Fire. Similar to the allegation against the accounting firm in Reves, the plaintiffs’ amended complaint, when distilled to its essence, is nothing more than an allegation that Peat Marwick performed materially deficient financial services. It cannot be said that by merely performing what are generic financial and related services to an insurance company, even if they are later found to be deficient, an accounting firm has opened itself to liability under the federal racketeering statute. The district court did not err in dismissing the RICO count.
It is clear that the plaintiffs never pleaded a substantial RICO claim, which was the only claim that conferred federal question jurisdiction. Thus, the district court erred when it dismissed the plaintiffs’ state law claims as time-barred. “Since there was no substantial federal claim to which the state claims could be appended, the primary justification for the exercise of pendent jurisdiction was absent.” fully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir.1976).
III.
We now consider whether it erred by denying the plaintiffs’ attorneys injunctive relief from the state contempt proceedings. When the plaintiffs’ attorneys filed this action in federal court, the Commissioner brought contempt proceeding in the Commonwealth Court against them on the theory that they, in their capacity as the attorneys for the Committee in the state insolvency proceedings, had violated confidentiality and supervisory orders of that court. The plaintiffs’ attorneys contend that the district court erred by refusing to enjoin the state contempt proceedings because the proceedings inhibit the plaintiffs from prosecuting their action in federal court. We review the district court’s denial of injunction for an abuse of discretion. Hohe v. Casey, 868 F.2d 69, 70 (3rd Cir.1989); Klitzman, Klitzman & Gallagher v. Knit, 744 F.2d 955, 958 (3rd Cir.1984).
The Anti-Injunction Act prohibits federal courts from enjoining state court proceedings unless authorized by Congress or where necessary to protect its jurisdiction or effectuate its judgments. 28 U.S.C. § 2283. The plaintiffs’ attorneys rely primarily on Donovan v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964), to assert that an injunction is necessary to preserve the district court’s jurisdiction over this action. In Donovan, the plaintiffs were dissatisfied with the results of a suit brought in state court and filed another action in federal district court. After some procedural maneuvers which are irrelevant here, the state court granted a writ of prohibition to bar the plaintiffs from prosecuting their case in federal court. The Supreme Court articulated a general rule, with exceptions for in rem and quasi in rem proceedings, that state and federal courts should not interfere with each other’s proceedings. 377 U.S. at 412, 84 S.Ct. at 1582. It then held that when Congress grants a right to bring a claim in federal court, a state court cannot take that right away by restraining a federal in personam action. Id.
Significantly, in Donovan, the plaintiffs were being barred from prosecuting their case in federal court. Here, however, the state contempt proceedings are not directed at the litigants, but only at their attorneys. The district court’s jurisdiction is not implicated here because nothing prevents the plaintiffs from prosecuting their case against Peat Marwick. The attorneys run for cover behind a shield meant only to protect their .clients’ access to federal courts and the district court’s authority to adjudicate this action.
Also, the state contempt proceedings were brought against the attorneys not in their capacity as attorneys for the federal litigants, but in their capacity as the attorneys for the Committee of the Policyholders in the state rehabilitation proceedings. The attorneys were bound by the Commonwealth Court’s confidentiality and supervisory orders. Principles of federal-state comity require that we not interfere with legitimate state contempt and disciplinary proceedings. Otherwise, attorneys finding themselves in a predicament because they violated state court orders might avoid disciplinary action by filing a federal suit.
The basic requirements for injunctive relief are a showing of the likelihood of success on the merits and a probability of irreparable harm if an injunction is not issued. Hoxworth v. Blinder Robinson & Co., 903 F.2d 186, 197 (3rd Cir.1990). The district court observed that this “motion in effect would have this court issue an order telling-judge Crumlish [of the , Commonwealth Court] that plaintiffs [attorneys] did not violate an order issued by him.” It wisely refused to do this. Federal courts are neither the proper forum for attorneys to air their grievances or objections to contempt proceedings brought against them in a state court, nor are we a safety net into which attorneys who find themselves in a predicament with a state court can simply jump. The district court properly denied injunctive relief. See Machesky v. Bizzell, 414 F.2d 283, 286 (5th Cir.1969) (district court did not abuse its discretion by denying injunctive relief against state criminal contempt proceedings).
IV.
We will reverse the district court’s order with respect to the dismissal of the state claims and remand with instructions to dismiss them without prejudice. We will affirm the balance of the district court’s order, including the order denying sanctions.
. This is made manifest by the remedies sought: disgorgement of about $1.5 million in fees paid to the plaintiff attorneys from Mutual Fire's estate before the filing of this action, revocation of Attorney Brown’s pro hue vice admission to the Commonwcalth Court, discontinuation of payment of fees and expenses to the Committee, an order to return ah copies of papers and files produced, and any other relief and sanctions the Commonwealth Court finds appropriate.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_appel1_7_4
|
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 "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the citizenship of this litigant as indicated in the opinion.
GOLDBERG v. COMMISSIONER OF INTERNAL REVENUE.
No. 6590.
Circuit Court of Appeals, Seventh Circuit.
July 15, 1938.
Rehearing Denied Jan. 3, 1939.
Robert Jackson, of Washington, D. C., Aaron Holman, of New York City, and Thomas H. Fisher, of Chicago, 111., for petitioner.
James W. Morris, Asst. Atty. Gen., and Sewall Key and Joseph M. Jones, Sp. Assts. to Atty. Gen., for respondent.
Before SPARKS and MAJOR, Circuit Judges and LINDLEY, District Judge.
MAJOR, Circuit Judge.
There is here presented for review a decision of the Board of Tax Appeals redetermining a deficiency in income tax against the petitioner for the calendar year 1928, in the amount of $49,007.48, plus a 50% penalty of $24,503.74, a total of $73,511.22.
Upon the hearing before the Board of Tax Appeals, the respondent conceded that in the absence of proof of fraud, the Statute of Limitations was a bar to any assessment.
During the year in question, petitioner claimed to be the owner of a large number of shares of stock of the Savold Tire Company and the New York Savold Tire Company, the former being a Delaware corporation and the latter appearing to be a subsidiary of the former. In 1928, petitioner claims to have sold to one, David Wiener, his brother-in-law, for the sum of $1,290.-80, 12,908 shares of stock in these corporations, the larger portion of which was stock of the Savold Tire Company. A loss of $385,843.66 was claimed on this transaction and deducted from petitioner’s gross income in his return filed for the year 1928. It is this deduction which respondent contends was fraudulent, and while other questions are discussed, this Is the essential one around which the controversy revolves, a solution of which is determinative.
The circumstances concerning the alleged sale of stock in 1928 are, as related by petitioner, that he offered to sell the same to Wiener, who was a stock broker in New York City. An agreement was reached and the stock was mailed to Wiener, accompanied by the following letter:
“December 22, 1928.
“Mr. Dave Wiener,
“C/o Wiener Bros.,
“148 Madison Ave.,
“New York, N. Y.
“Dear Dave:
“I am sending you this stock under separate cover in accordance with my sale to you. This stock cost me a lot of money and, buying it at the price.you are buying, it, I hope you will make a good thing of it. Please send your check for $1290.80.
“Yours very truly,
“SHG :EV”
Wiener did not pay for the stock as agreed, but some three years later, he gave petitioner a note for money which he had borrowed at that time, and petitioner thought the alleged consideration for the stock might have been included.
In his income tax return for the year 1928, petitioner, on the face of the return, reported $26,420.26 as “profit from sale of real estate, stocks, bonds, etc.” In the supporting schedule, in connection therewith, the following items are reported:
Kind of prop- Date ac- Amount Net erty quired realized Cost Profit
Colorado Fuel & Iron Co. Stock ...... 1928 $ 32,492.59 $ 31,975.09 $ 517.50
McCrory Corporation stock ...... 11,612.80 10,000.00 1,612.80
Gasoline-Savold stock... . 487,364.42 462,134.46 25,229.96
Studebaker Corp. stock 80,760.00 81,700.00 *940.00
Total .... 612,229.72 585,809.46 26,420.26
♦Lose.
In March, 1930, a revenue agent examined petitioner’s records and reported that “tax payer maintains a complete set of personal records. All items were verified and found to be correct. * * * It is recommended the return, as -filed, be accepted as correct.”
In the early part of 1933, another investigation was made by another revenue agent. It was then discovered that the amount of $25,229.96, shown as profit in “Gasoline-Savold” stock, as disclosed in petitioner’s return, was the result of combining two transactions, one in stock of the Gasoline Products Corporation and the other in stock of the Savold Corporation. The separate computations as made by petitioner’s bookkeeper on the retained copy of the return were as follows:
Amount Net gain Received Cost or loss
Gasoline Products.. ..$486,078.62 $ 75,000.00 $411,073.62 Savold Co........... .. l',290.80 387,134.46 *385,843.66
'Total ........... 25,229.96
*Loss.
It will thus be seen that the tax payer realized a profit of $411,073.62 on the sale of Gasoline Products Company stock, which was subject to a substantial tax, and that by asserting a loss on the Savold Company stock of $385,843.66, there was a net gain of only $25,229.96, by which process petitioner effected a material reduction in the amount of tax for which he 'otherwise would have been liable. The explanation, by petitioner’s bookkeeper for the combining of the two items referred to was to the effect that five transactions had to be reported in the space allowed for only four items and it was, therefore, necessary or at least convenient to combine the two items and report them as one.
The agent making the investigation at that time, reported in part as follows:
“The loss of $385,924.66 on the sale of stock of the Savold Tire Corporation should have been disallowed before the'statute of limitations had expired for the reason that the stock was worthless prior to 1928; in fact the stock was ruled off the New York Curb in 1920 and the last quotations are to the effect that 33,327 shares were sold by R. L. Day & Co., brokers of Boston, at auction on Dec. 31, 1921, for $500.00 for the lot. The company ceased operations and cannot be located. Inasmuch as this loss was disclosed on the original return which was accepted after an original examination no question of attempted evasion or fraud-would stand.”
In 1934, after the period for making an assessment had expired, except by reason of the fraud statute respondent notified petitioner of his determination to disallow the deductions claimed, for the following reasons :
“Loss claimed by you on Savold Tire stock has been disallowed, as it is held that the sale in the year 1928 was not bona fide. Evidence disclosed by the revenue agent who conducted the investigation of your income tax liability indicates that the stock became worthless in a prior year.”
It is contended by respondent that the stock in question, to the knowledge of petitioner, became worthless prior to the year 1928 and that the petitioner actually claimed and obtained a deduction from his income tax for the year 1919 upon stock in the Savold Company of the same character and issue upon which he claimed a deductible loss for the year in question. Much testimony was heard by the Board as bearing upon that question. Petitioner’s income tax return for the year 1919 was offered, in which the tax payer claimed a deduction in the amount of $673,625.78, resulting largely from losses on the Savold stock. Said return referring to the Savold Company contains the following statement:
“This Company is practically bankrupt and no return is expected. Balance Sheets of the Company are not available but may be furnished on request. No bidders on Stock Exchange. Shares are considered worthless.”
Upon an investigation of petitioner’s tax liability for 1919, there was some dispute as to whether petitioner was entitled to the loss as claimed. Petitioner was advised that it would be necessary for him to submit further proof to substantiate his claim for deduction. In support of such claim, he thereupon procured the affidavits of several brokers to the effect that the stock was worthless; he secured a letter from the Secretary of State of New York stating that the New York Company had filed no annual reports and that there was no record of the standing of the company financially; a letter from the Secretary of the State of Delaware to the effect that the company had not filed its annual report for 1920, and he procured an affidavit from his attorney who had made an effort on behalf of the petitioner to collect money from the Savold companies which had been advanced by petitioner, and who had made an effort to dispose of several thousand shares of Savold Stock for the petitioner. The attorney stated in the affidavit that as a result of exhaustive investigation, the “stock has absolutely no value; and had absolutely no value in November, 1919, and that said stock could not, at that time, or any time since, have been sold to anybody for any price, same having been offered and refused.” These several affidavits were filed with the Revenue Agent and made a part of the agent’s report recommending that the deduction be allowed, which recommendation was approved by the Commissioner.
Petitioner contends that the Board of Tax Appeals was in error in holding that in a fraud case, the Commissioner’s determination is presumptively correct. It is said that the Board completely disregarded the fundamental rule that the burden of proof on such an issue is on the Commissioner, and that the Board proceeded upon a contrary theory. We think in this petitioner is mistaken. The Board, in its decision, made this statement: “Not only does the evidence in this case fail to overcome this presumption, but it affirmatively convinces us that the Commissioner was right.” This language, no doubt, is what has confused the situation. We think it is well established that in an issue such as here presented, there is no presumption to be indulged in in favor of the Commissioner’s determination, and that the burden to establish the charge of fraud is upon him. Old Mission Portland Cement Company v. Helvering, 293 U.S. 289, 55 S.Ct. 158, 79 L.Ed. 367; Snell Isle, Inc. v. Commissioner, 5 Cir., 90 F.2d 481. Notwithstanding the somewhat confusing language used by the Board in its decision, it is apparent that the Board’s conclusion was not based upon such a presumption, but upon the evidence before it as is indicated by its statement, “but it affirmatively convinces us that the Commissioner was right.” A study of the record convinces us that there is substantial evidence to sustain the conclusion of the Board with reference to the charge of fraud, and this is sufficient. Wickham v. Commissioner, 8 Cir., 65 F.2d 527. In fact, the circumstances lead almost irresistibly to this conclusion.
The return, on its face, has the earmark of deception. It is far more reasonable to believe that the purpose of combining two items, one of which had shown a large gain and the other a loss almost as great, was done deliberately for the purpose of deceiving rather than that there was not a sufficient number of lines on the form used to list these items separately. The alleged sale of the stock to petitioner’s brother-in-law appears to be a sham rather than a bona fide sale. While it is claimed the purchase price was $1.00 per share, yet it was never paid. Petitioner evidently knew that the stock was worthless , and had so known for many years. As heretofore related in his tax return for 1919, he made the express representation that the shares were worthless and the company practically bankrupt. He procured and filed numerous affidavits, including that of his attorney, who apparently was well versed concerning the stock to the effect that it was worthless. It is contended by petitioner that such evidence was improperly admitted, but we conclude otherwise. Certainly, the tax payer should not be permitted to “blow hot and cold,” to claim that stock has no value when it is to his interest and then claim it has value when the situation is reversed. A statement or claim made by a party to litigation contrary to what he makes or claims in court is always admissible, so far as we are aware;
We find no error which would justify a reversal of the decision of the Board of Tax Appeals. The same is
Affirmed.
26 U.S.C.A. § 276. Exceptions to general period of limitation.
“(a) False return or no return. In the case of a false or fraudulent return with intent to evade tax or of a failure to file a return the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.”
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the citizenship of this litigant as indicated in the opinion?
A. not ascertained
B. US citizen
C. alien
Answer:
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songer_initiate
|
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.
SINGER v. SHAUGHNESSY, Collector of Internal Revenue.
No. 236, Docket 22319.
United States Court of Appeals Second Circuit.
Argued May 7, 1952.
Decided July 14, 1952.
Smith & Sovik, Syracuse (William J. Mackay, Syracuse, argued), for L. W. Singer estate.
Ellis N. Slack, Acting Asst. Atty. Gen., A. F. Prescott, Elizabeth B. Davis, Sp. Asst, to the Acting Atty. Gen., Edmund Port, U. S. Atty., Syracuse, for Collector.
Before SWAN, CHASE and CLARK, Circuit Judges.
CHASE, Circuit Judge.
The plaintiff, as executrix of the estate of her husband, L. W. Singer, who died on August 21, 1944, filed an estate tax return and paid the tax computed thereon. Thereafter, she filed a timely claim for the refund of part of the tax so paid. Upon audit of the return a deficiency was determined which was paid by the executrix who also filed a timely claim for the refund of that. Both claims were denied and she brought this suit against the collector to recover what she had claimed as overpayments. A jury returned a special verdict and, from a judgment entered thereon for a part of the amount so claimed, both parties have appealed.
The appeal of the plaintiff puts in issue the value for estate tax purposes of the decedent’s interest in a business conducted under the name of L. W. Singer & Co., and the proper part of the proceeds of two policies of insurance upon his life to be included in his gross estate.'
The appeal of the defendant puts in issue the extent to which there is includible in the decedent’s gross estate: property jointly held by him and his wife; a joint bank account; promissory notes made by her payable to him; and two joint and survivor annuity policies which the plaintiff claims were given to her by her husband shortly before he died.
When Mr. and Mrs. Singer were married in 1926 he was a salesman for a book publishing company and also owned a small publishing business in Syracuse, New York called the L. W. Singer Company. Mrs. Singer took an active part in conducting the business of the L. W. Singer Company while Mr. Singer continued his work for some years as a salesman for his employer and devoted what spare time he could to helping his wife run the Singer Company. Subsequently he gave up his other work and devoted all his time to the business. He and his wife were successful in that and continued to run the business together until he died. On May 31, 1944, they executed a formal agreement setting forth that Mr. Singer had owned and operated the business for twenty years and that for eighteen years Mrs. Singer had been associated with him as an employee during which time she had “become thoroughly acquainted with and versed in all phases of the business and now constitutes a valuable and important part thereof, although she has no financial interest therein,” and that he had increasingly been relying upon her aid and advice particularly during the preceding two years. He, consequently, desired to create a partnership with her and to sell her an undivided one half interest in the business. According to this agreement, he did sell her such interest for $100,000 payable $28,000 in cash and $18,000 on June 1, 1945, $18,000 on June 1, 1946 and $6000 on June 1, in each succeeding year until the unpaid balance had been paid with interest at 3%. She paid him the $28,000 in cash and gave him notes for the remainder.
In ,the estate tax return she filed, she set up the decedent’s interest in the business at one half and valued his share at $100,000. She also included his distributive share of undivided profits in the amount of $68,994.-16. Certain stocks and bonds and miscellaneous property held in their joint names, the promissory notes she had made payable to him together with accrued interest, the proceeds of two life insurance policies which matured at his death and in each of which she was named as the beneficiary were also listed in the return as the decedent’s property. She filed an income tax return for herself for 1944 in which she reported one half of the profits of the business from June 1, 1944 through August 21st and all of the profits of it for the remainder of that year. In an income tax return which she filed for Mr. Singer covering the period from January 1st through August 21st, she included the entire profits of the business up to June 1st and one half of them from that date through August 21st. She did not include in the estate tax return filed the value of two annuities. One of these was purchased in 1943 by Mr. and Mrs. Singer and it provided for joint monthly payments to them beginning April 17, 1943 and continuing during their lives and after the death of one to the survivor for life; the other was purchased on June 19, 1944 providing for joint monthly payments beginning on that date and continuing as those did upon the first contract with like survivorship rights. In her income tax return for 1944 she included one half of the annuity payments made in 1944 from January 1, 1944 to August 21, 1944 and the remaining half in the income tax return filed for her husband.
In filing these returns she had acted in accordance with the statements in the agreement she made with her husband on June 1, 1944 to the effect that she then had, for the first time, acquired a financial interest in the L. W. Singer Company. But she changed her position and filed an amended estate tax return based on the contention that she had been an equal partner with her husband in the L. W. Singer Company from the time she took an active part in its affairs after her marriage to the date of his death. The adjustments she made on that basis reduced his distributive share of the partnership profits and, since the jointly owned real and personal property had been acquired with L. W. Singer •Company funds, which also made up the bank account and which had been used to pay the premiums on the life insurance policies, the result was the inclusion for estate taxes of only one half of any of these itenjs.
The denial of the claims for refunds and the determination of the deficiency resulted in part from the refusal to accept and give effect taxwise to the new position of Mrs. Singer as a partner in the business before June 1, 1944, or her contention that a valid gift of the annuity contracts had been made to her. The remainder of the deficiency was due to the increase in the value of decedent’s interest in the business and the denial of Mrs. Singer’s contention that her notes had been given her husband with no intention on the part of either that they would ever be paid and so were not obligations owed him when he died.
The disputed issues of fact were submitted to the jury after the defendant moved for a directed verdict, action on the motion being held in abeyance. In the special verdict'taken, the jury gave the following answers to the following questions:
“1. Was there a partnership agreement to conduct the business of L. W. Singer existing between Frances A. Singer and her husband, Leland W. Singer, at or about the time they were married on July 24th, 1926, and did such partnership remain effective throughout the period of the conduct of the business of the L. W. Singer company through the years 1926 to June 1st, 1944? Yes.
“2. If you find there was no valid partnership agreement existing was there an agreement between Mr. and Mrs. Singer as to the sharing of profits between them from the business of the L. W. Singer Company? (Not answered.)
“3. If you find that either a valid partnership agreement or a valid profit sharing agreement existed between the parties, what were the percentage proportions of such profits that was agreed should be owned by Mrs. Sing- . er ? Fifty per cent.
“4. Were the stocks set forth in Exhibit 37A and the bonds set forth in Exhibit 37B, the real, estate set forth in Exhibit 37C and the miscellaneous property, set forth in Exhibit 37D, the-annuity issued by the- Connecticut Mutual Life Insurance Company on April 6th of 1943, the insurance policy issued by the Connecticut Mutual Life Insurance Company on December 1, of 1944, the insurance policy issued by the New England Mutual Life Insurance Company on November 1 of 1932, and the policy issued by the Equitable Life Insurance Company of Iowa on the 30th day of August, 1930, purchased or acquired by Mr. and Mrs. Singer out of profits from that operation of the L. W. Singer Company by them? Yes.
“5. Did Mr. Singer make absolute, complete and effective gifts to Mrs. Singer of the annuity policies issued by the Connecticut Mutual Life Insurance Company on April 6, 1943 and June 19, 1944? (If the answer to this question is no, disregard the next question.) Yes.
“6. If you find that such valid gifts were made, were such gifts made by Mr. Singer in contemplation of death? No.
“7. Were the promissory notes of a face value of $72,000 signed by Mrs. .Singer, valid obligations due and owing by Mrs. Singer to Mr. Singer? No.
“8. What was the fair market value of the L. W. Singer 'Company as of the date of Mr. Singer’s death on August 21st, 1944? $275,000.00.
“9. Was the cash on deposit at the Lincoln National Bank in the sum of $170,019.19, money belonging to Mr. and Mrs. Singer equally at the time of his death? Yes.”
The defendant moved to set aside the special verdict as against the evidence and that and his motion for a directed verdict were then denied. It was held as a matter of law that the entire proceeds of the life insurance policies were includible in the gross estate of the decedent but, in, all other respects, judgment was entered for the plaintiff in accordance with the special verdict.
The Plaintiff’s Appeal.
As to the inclusion of the entire proceeds of the life insurance policies there was no error. In each, the decedent had the right to change the beneficiary and that alone was enough as an “incident of ownership” to make the entire proceeds of each includible in his gross estate under § 811(g) (2) (B), I.R.C., 26 U.S.C.A. § 811(g) (2) (B). Fernandez v. Wiener, 326 U.S. 340, 66 S.Ct. 178, 90 L.Ed. 116. Appellant’s argument that § 811(a) applies is unsound in that it is a general provision while § 811(g) is a special provision dealing with the particular subject here in dispute.
The remaining part of the plaintiff’s appeal is based upon her insistence that, in arriving at the valuation of $275,000 for the business of L. W. Singer Company at the decedent’s death, the decedent’s distributive share was included by the jury. Since this was set up as a separate item in the estate tax return, as it was taxable, Bull v. United States, 295 U.S. 247, 55 S.Ct. 695, 79 L.Ed. 1421 it would, of course, tax it twice if the jury also included it in the valuation of the business. The trial judge was not impressed by this assertion and neither are we. There was evidence to show that the fair market value of the business was not less than $385,000 and other evidence to show it to be less than the $275,000 found. The judge defined “fair market value” in his charge to be “a net value equal to an amount which a willing purchaser, * * * would pay to a willing seller in view of the value of the assets and the demonstrated earning capacity.” Since the finding has substantial evidence in the record to support it, it is now given effect. That the decedent’s distributive share was mistaken by the jury as an asset of the business is but an unwarranted assumption of what was unlikely and, with substantial evidence to support the finding without so doing, no error in the trial judge’s refusal to disturb the special verdict on that ground appears.
The Defendant’s Appeal.
Most of the defendant’s appeal rests upon his insistence that Mr. and Mrs. Singer were not partners in the business until they executed their agreement of June 1, 1944. The recitations in that document, as well as other evidence, support his contention. However, there was substantial evidence to show that they understood that Mrs. Singer, from the time she-became connected with the business following her marriage, was to be a joint owner of the enterprise. She was a potent factor in its success. She had charge of it while her husband was away on his work as the salesman of another company and there was evidence to show that he always relied largely upon her ability and deferred to her judgment. The profits which were withdrawn were always invested in property in their joint names or maintained in bank accounts in their joint names except for a small personal account of Mrs. Singer’s out of which she-paid their household expenses. In short, they conducted the business together and shared the net profits as equal partners would have done. Indeed, she seems to have been the more dominant one in guiding the business. That was enough to take this question to the jury. Commissioner v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 93 L.Ed. 1659. It was submitted in a charge which was without error. It was not necessary, as the defendant contends, to prove an express partnership agreement. Weizer v. Commissioner, 6 Cir., 165 F.2d 772. If, as it did, the evidence justified an inference that such an agreement did exist, the special verdict forecloses that question here. So we now take it as established that Mr. and Mrs. Singer, as equal partners, owned and operated the business known as L. W. Singer Company from the time she began her work until he died. Since all •the property held in their joint names was purchased with funds earned by them together and withdrawn from the business, it follows that only one half of the value of such property was includible in the decedent’s gross estate. Rogan v. Kammerdiner, 9 Cir., 140 F.2d 569; Berkowitz v. Commissioner, 3 Cir., 108 F.2d 319. For the same reason one half only of the joint bank account was includible.
Nor was it error to exclude the promissory notes executed by Mrs. Singer from the decedent’s gross estate. They were executed at the same time that the partnership agreement of June 1, 1944 was entered into and there was evidence to the effect that that agreement was executed merely to make formal the existing partnership relationship without intent on his or her part that the notes which she never delivered to him, were to be paid. And this is consistent with the finding that a partnership existed prior to the execution of the 1944 agreement.
There was also sufficient evidence to support the jury’s finding that Mr. Singer made completed gifts to his wife of the two annuity policies and that the gifts were not in contemplation of death. The first of these was purchased on April 6, 1943 with partnership funds and provided for payments, beginning April 17, 1943, of $23.00 monthly to them jointly while they both lived and then to the survivor. In June 1944 a single premium life insurance policy on Mr. Singer’s life, which had been paid for with funds of the L. W. Singer Company, matured and Mr. and Mrs. Singer used the proceeds to buy a similar joint and survivor annuity contract which paid them $227.00 monthly and would make the entire contemplated joint annuity $250.00 monthly. When each of these policies was delivered Mr. Singer told his wife that it was hers and handed it to her and she kept possession of it. Whenever annuity checks were received they were payable to them jointly but he endorsed the checks and gave them to her. She used the proceeds as she pleased. The jury evidently believed this evidence. It shows in the absence of any requirement of notification to the insurance company a completed gift. However, the defendant contends that, since the gifts were made within two years of death, and the burden was upon the donee to show that each was not made in contemplation of death this part of the verdict should have been set aside because of lack of proof. Sec. 811(c), I.R.C. As to that, the record shows that Mr. Singer suffered a heart attack in 1942 and, as before stated, that he died in August 1944. But, as late as June 1944, he had elected not to take down his share of the proceeds of the matured life insurance policy, or to continue the coverage under it. Instead, he invested them in a contract more valuable if he lived than if he died. His health had improved since 1942 and he and Mrs. Singer were considering expanding the business and arranging matters so that they could delegate some of their responsibilities and take things easier. The jury was charged in accordance with United States v. Wells, 283 U.S. 102, 51 S.Ct. 446, 75 L.Ed. 867, where the principles to govern decision as to this baffling problem were set forth and we find no error in the acceptance by the trial judge of the special verdict in this respect.
Judgment affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
EAST et al. v. BOWLES, Administrator, OPA.
No. 11667.
Circuit Court of Appeals, Fifth Circuit
Dec. 2, 1946.
Rehearing Denied Jan. 7, 1947.
Harry S. Pollard, of Austin, Tex., for appellants.
Irving M. Gruber, Chief, General Litigation Branch, of Washington, D. C., J. M. Burnett, U. S. Atty., and William P. Dobbins and Van H. Howard, Jr., Attys., OPA, all of San Antonio, Tex., and David London, Dr., Litigation Div., OPA, of Washington, D. C. (George Moncharsh, Deputy Adm’r for Enforcement, Albert M. Dreyer, Chief, Appellate Branch, and Abraham H. Maller, Sp. Appellate Atty., OPA, all of Washington, D. C., and Leonard M. Cox, Regional Litigation Atty., of Dallas, Tex., on the brief), for appellee.
Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.
PER CURIAM.
The suit brought under Section 205(e) of the Emergency Price Control Act was for statutory damages on account of two sales of poultry above ceiling price. The claim was that though the price per pound stated in the invoice accompanying each shipment was within the ceiling, each shipment was short in weight, and the invoice for the shipment as a whole represented an actual overcharge per pound. The defense was a denial of a violation in that the overcharge, if any occurred, was not willful or intentional, nor was it the result of a failure to take practicable precautions against the occurrence of a violation!
On plaintiffs part, there was evidence: that defendants had shipped to Bachelor Officers Mess by Brown Express eigh! boxes of frozen dressed poultry, 800 pounds prepaid, and three boxes dressed poultry, 300 pounds prepaid; that they had invoiced the shipments as 800 pounds fryers at 45j£, $360.00; and 300 pounds fryers at 45^, $135.00; that consignee had weighed the shipments and found them short; and that the amount charged for the poultry was in excess of the ceiling price.
Defendants’ evidence was to the effect; that they did everything they could to make their shipments correct; that if the shipments were short, it was not intentional but due to unintentional error or mistake; that they supposed that the poultry would be weighed upon receipt; and that as soon as they learned of the claim that the poultry was short, they returned the check for the original invoice and sent a new invoice for the amount the consignee claimed to have received. One of the defendants, Alvin G. East, testified that as a matter of fact he knew nothing about the shipments except what his records showed.
The evidence concluded, the jury returned a verdict on special issues, finding: (1) that the shipments were short in weight; (2) that defendants had not willfully or intentionally delivered less than the weight billed for; and (3) that the short delivery was not the result of a failure'to take practicable precautions. Defendants moving for judgment on this verdict, insisted that since the jury had acquitted the defendants both of willfulness and want of care, defendants should have had judgment. The district judge overruled this motion and gave judgment against defendants for the amount of the overcharges, but not for treble damages.
Defendants are here urging that the finding of the jury, that the short weight in the shipments was the result neither of willfulness nor of failure to take practicable precautions, was complete exoneration of defendants and constituted a complete defense to the suit. Pointing out that the violation complained of here was not that the per pound price stated in the invoice was above the ceiling but that, though the stated per pound price was correct. the total number of pounds charged for was short, appellants insist that the cases of sales of specific articles for an above ceiling price, on which the government relies, are not in point, and that no violation is made out here without showing that the weight-shortage was intentional.
We cannot agree. It is just as much an overcharge to bill a shipment at the correct price per pound with the poundage short as to bill the shipment at a price per pound above ceiling would be. The jury’s verdict did indeed furnish a basis for denying plaintiff the recovery of treble damages. It did not furnish any basis for denying all recovery. Indeed, it furnished the basis for the judgment entered. It found that the shipment was short by a number of pounds, and the undisputed evidence established that, figured at the correct rate per pound, the amounts charged for the two shipments were excessive to the extent of $156.85, the amount recovered.
The judgment was right. It is affirmed.
50 U.S.C.A.Appendix § 901 et seq.
Bowles v. Hastings, 5 Cir., 146 F.2d 94; Bowles v. Indianapolis, 7 Cir., 150 F.2d 597: Shearer v. Porter. 8 Cir., 155 F.2d 77; Kenney v. Hood, 5 Cir., 1946, 158 F.2d 226.
Brown v. Mars, 8 Cir., 135 F.2d 843.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
sc_respondent
|
004
|
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.
McINTYRE, executor of ESTATE OF McINTYRE, DECEASED v. OHIO ELECTIONS COMMISSION
No. 93-986.
Argued October 12, 1994
Decided April 19, 1995
Stevens, J., delivered the opinion of the Court, in which O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Ginsburg, J., filed a concurring opinion, post, p. 358. Thomas, J., filed an opinion concurring in the judgment, post, p. 358. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 371.
David Goldberger argued the cause for petitioner. With him on the briefs were George Q. Vaile, Steven R. Shapiro, Joel M. Gora, Barbara P. O’Toole, and Louis A. Jacobs.
Andrew I. Sutter, Assistant Attorney General of Ohio, argued the cause for respondent. With him on the briefs were Lee Fisher, Attorney General, Andrew S. Bergman, Robert A. Zimmerman, and James M. Harrison, Assistant Attorneys General, Richard A. Cordray, State Solicitor, and Simon B. Karas
Briefs of amici curiae urging affirmance were filed for the State of Tennessee et al. by Charles W. Burson, Attorney General of Tennessee, Michael E. Moore, Solicitor General, and Michael W. Catalano, and by the Attorneys General for their respective States as follows: Jimmy Evans of Alabama, Bruce M. Botelho of Alaska, Winston Bryant of Arkansas, Gale A. Norton of Colorado, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Larry EchoHawk of Idaho, Roland W. Burris of Illinois, Pamela Fanning Carter of Indiana, Chris Gorman of Kentucky, Richard P. Ieyoub of Louisiana, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P Mazurek of Montana, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Deborah T Poritz of New Jersey, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Susan B. Loving of Oklahoma, T Travis Medlock of South Carolina, Mark Barnett of South Dakota, and Jeffrey L. Amestoy of Vermont; and for the Council of State Governments et al. by Richard Ruda and Lee Fennell.
Charles H. Bell, Jr., and Robert E. Leidigh filed a brief for the California Political Attorneys Association as amicus curiae.
Justice Stevens
delivered the opinion of the Court.
The question presented is whether an Ohio statute that prohibits the distribution of anonymous campaign literature is a “law... abridging the freedom of speech” within the meaning of the First Amendment.
I
On April 27, 1988, Margaret McIntyre distributed leaflets to persons attending a public meeting at the Blendon Middle School in Westerville, Ohio. At this meeting, the superintendent of schools planned to discuss an imminent referendum on a proposed school tax levy. The leaflets expressed Mrs. McIntyre’s opposition to the levy. There is no suggestion that the text of her message was false, misleading, or libelous. She had composed and printed it on her home computer and had paid a professional printer to make additional copies. Some of the handbills identified her as the author; others merely purported to express the views of “CONCERNED PARENTS AND TAX PAYERS.” Except for the help provided by her son and a friend, who placed some of the leaflets on car windshields in the school parking lot, Mrs. McIntyre acted independently.
While Mrs. McIntyre distributed her handbills, an official of the school district, who supported the tax proposal, advised her that the unsigned leaflets did not conform to the Ohio election laws. Undeterred, Mrs. McIntyre appeared at another meeting on the next evening and handed out more of the handbills.
The proposed school levy was defeated at the next two elections, but it finally passed on its third try in November 1988. Five months later, the same school official filed a complaint with the Ohio Elections Commission charging that Mrs. McIntyre's distribution of unsigned leaflets violated § 3599.09(A) of the Ohio Code. The commission agreed and imposed a fine of $100.
The Franklin County Court of Common Pleas reversed. Finding that Mrs. McIntyre did not “mislead the public nor act in a surreptitious manner,” the court concluded that the statute was unconstitutional as applied to her conduct. App. to Pet. for Cert. A-34 to A-35. The Ohio Court of Appeals, by a divided vote, reinstated the fine. Notwithstanding doubts about the continuing validity of a 1922 decision of the Ohio Supreme Court upholding the statutory predecessor of § 3599.09(A), the majority considered itself bound by that precedent. Id., at A-20 to A-21, citing State v. Babst, 104 Ohio St. 167, 135 N. E. 525 (1922). The dissenting judge thought that our intervening decision in Talley v. California, 362 U. S. 60 (1960), in which we invalidated a city ordinance prohibiting all anonymous leafletting, compelled the Ohio court to adopt a narrowing construction of the statute to save its constitutionality. App. to Pet. for Cert. A-30 to A-31.
The Ohio Supreme Court affirmed by a divided vote. The majority distinguished Mrs. McIntyre’s case from Talley on the ground that § 3599.09(A) “has as its purpose the identification of persons who distribute materials containing false statements.” 67 Ohio St. 3d 391, 394, 618 N. E. 2d 152, 154 (1993). The Ohio court believed that such a law should be upheld if the burdens imposed on the First Amendment rights of voters are “‘reasonable’” and “‘nondiscriminatory.’” Id., at 396, 618 N. E. 2d, at 155, quoting Anderson v. Celebrezze, 460 U. S. 780, 788 (1983). Under that standard, the majority concluded that the statute was plainly valid:
“The minor requirement imposed by R.C. 3599.09 that those persons producing campaign literature identify themselves as the source thereof neither impacts the content of their message nor significantly burdens their ability to have it disseminated. This burden is more than counterbalanced by the state interest in providing the voters to whom the message is directed with a mechanism by which they may better evaluate its validity. Moreover, the law serves to identify those who engage in fraud, libel or false advertising. Not only are such interests sufficient to overcome the minor burden placed upon such persons, these interests were specifically acknowledged in [First Nat. Bank of Boston v.] Bellotti[, 435 U. S. 765 (1978),] to be regulations of the sort which would survive constitutional scrutiny.” 67 Ohio St. 3d. at 396, 618 N. E. 2d, at 155-156.
In dissent, Justice Wright argued that the statute should be tested under a more severe standard because of its significant effect “on the ability of individual citizens to.freely express their views in writing on political issues.” Id., at 398, 618 N. E. 2d, at 156-157. He concluded that § 3599.09(A) “is not narrowly tailored to serve a compelling state interest and is, therefore, unconstitutional as applied to McIntyre.” Id., at 401, 618 N. E. 2d, at 159.
Mrs. McIntyre passed away during the pendency of this litigation. Even though the amount in controversy is only $100, petitioner, as the executor of her estate, has pursued her claim in this Court. Our grant of certiorari, 510 U. S. 1108 (1994), reflects our agreement with his appraisal of the importance of the question presented.
II
Ohio maintains that the statute under review is a reasonable regulation of the electoral process. The State does not suggest that all anonymous publications are pernicious or that a statute totally excluding them from the marketplace of ideas would be valid. This is a wise (albeit implicit) concession, for the anonymity of an author is not ordinarily a sufficient reason to exclude her work product from the protections of the First Amendment.
“Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.” Talley v. California, 362 U. S., at 64. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.
The, freedom to publish anonymously extends beyond the literary realm. In Talley, the Court held that the First Amendment protects the distribution of unsigned handbills urging readers to boycott certain Los Angeles merchants who were allegedly engaging in discriminatory employment practices. 362 U. S. 60. Writing for the Court, Justice Black noted that “[persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” Id., at 64. Justice Black recalled England’s abusive press licensing laws and seditious libel prosecutions, and he reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names. Id., at 64-65. On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent. Thus, even in the field of political rhetoric, where “the identity of the speaker is an important component of many attempts to persuade,” City of Ladue v. Gilleo, 512 U. S. 43, 56 (1994) (footnote omitted), the most effective advocates have sometimes opted for anonymity. The specific holding in Talley related to advocacy of an economic boycott, but the Court’s reasoning embraced a respected tradition of anonymity in the advocacy of political causes. This tradition is perhaps best exemplified by the secret ballot, the hard-won right to vote one’s conscience without fear of retaliation.
Ill
California had defended the Los Angeles ordinance at issue in Talley as a law “aimed at providing a way to identify those responsible for fraud, false advertising and libel.” 362 U. S., at 64. We rejected that argument because nothing in the text or legislative history of the ordinance limited its application to those evils. Ibid. We then made clear that we did “not pass on the validity of an ordinance limited to prevent these or any other supposed evils.” Ibid. The Ohio statute likewise contains no language limiting its application to fraudulent, false, or libelous statements; to the extent, therefore, that Ohio seeks to justify § 3599.09(A) as a means to prevent the dissemination of untruths, its defense must fail for the same reason given in Talley. As the facts of this case demonstrate, the ordinance plainly applies even when there is no hint of falsity or libel.
Ohio’s statute does, however, contain a different limitation: It applies only to unsigned documents designed to influence voters in an election. In contrast, the Los Angeles ordinance prohibited all anonymous handbilling “in any place under any circumstances.” Id., at 60-61. For that reason, Ohio correctly argues that Talley does not necessarily control the disposition of this case. We must, therefore, decide whether and to what extent the First Amendment’s protection of anonymity encompasses documents intended to influence the electoral process.
Ohio places its principal reliance on eases such as Anderson v. Celebrezze, 460 U. S. 780 (1983); Storer v. Brown, 415 U. S. 724 (1974); and Burdick v. Takushi, 504 U. S. 428 (1992), in which we reviewed election code provisions governing the voting process itself. See Anderson, supra (filing deadlines); Storer, supra (ballot access); Burdick, supra (write-in voting); see also Tashjian v. Republican Party of Conn., 479 U. S. 208 (1986) (eligibility of independent voters to vote in party primaries). In those cases we refused to adopt “any ‘litmus-paper test’ that will separate valid from invalid restrictions.” Anderson, 460 U. S., at 789, quoting Storer, 415 U. S., at 730. Instead, we pursued an analytical process comparable to that used by courts “in ordinary litigation”: We considered the relative interests of the State and the injured voters, and we evaluated the extent to which the State’s interests necessitated the contested restrictions. Anderson, 460 U. S., at 789. Applying similar reasoning in this case, the Ohio Supreme Court upheld § 3599.09(A) as a “reasonable” and “nondiscriminatory” burden on the rights of voters. 67 Ohio St. 3d, at 396, 618 N. E. 2d, at 155, quoting Anderson, 460 U. S., at 788.
The “ordinary litigation” test does not apply here. Unlike the statutory provisions challenged in Storer and Anderson, § 3599.09(A) of the Ohio Code does not control the mechanics of the electoral process. It is a regulation of pure speech. Moreover, even though this provision applies evenhandedly to advocates of differing viewpoints, it is a direct regulation of the content of speech. Every written document covered by the statute must contain “the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor.” Ohio Rev. Code Ann. § 3599.09(A) (1988). Furthermore, the category of covered documents is defined by their content — only those publications containing speech designed to influence the voters in an election need bear the required markings. Ibid. Consequently, we are not faced with an ordinary election restriction; this case “involves a limitation on political expression subject to exacting scrutiny.” Meyer v. Grant, 486 U. S. 414, 420 (1988).
Indeed, as we have explained on many prior occasions, the category of speech regulated by the Ohio statute occupies the core of the protection afforded by the First Amendment:
“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v. United States, 354 U. S. 476, 484 (1957). Although First Amendment protections are not confined to ‘the exposition of ideas,’ Winters v. New York, 333 U. S. 507, 510 (1948), ‘there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs,... of course including] discussions of candidates....’ Mills v. Alabama, 384 U. S. 214, 218 (1966). This no more than reflects our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,’ New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation, As the Court observed in Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971), ‘it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.’” Buckley v. Valeo, 424 U. S. 1, 14-15 (1976) (per curiam).
Of course, core political speech need not center on a candidate for office. The principles enunciated in Buckley extend equally to issue-based elections such as the school tax referendum that Mrs. McIntyre sought to influence through her handbills. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776-777 (1978) (speech on income tax referendum “is at the heart of the First Amendment’s protection”). Indeed, the speech in which Mrs. McIntyre engaged — handing out leaflets in the advocacy of a politically controversial viewpoint — is the essence of First Amendment expression. See International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672 (1992); Lovell v. City of Griffin, 303 U. S. 444 (1938). That this advocacy occurred in the heat of a controversial referendum vote only strengthens the protection afforded to Mrs. McIntyre’s expression: Urgent, important, and effective speech can be no less protected than impotent speech, lest the right to speak be relegated to those instances when it is least needed. See Terminiello v. Chicago, 337 U. S. 1, 4 (1949). No form of speech is entitled to greater constitutional protection than Mrs. McIntyre’s.
When a law burdens core political speech, we apply “exacting scrutiny,” and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest. See, e. g., Bellotti, 435 U. S., at 786. Our precedents thus make abundantly clear that the Ohio Supreme Court applied a significantly more lenient standard than is appropriate in a case of this kind.
IV
Nevertheless, the State argues that, even under the strictest standard of review, the disclosure requirement in § 3599.09(A) is justified by two important and legitimate state interests. Ohio judges its interest in preventing fraudulent and libelous statements and its interest in providing the electorate with relevant information to be sufficiently compelling to justify the anonymous speech ban. These two interests necessarily overlap to some extent, but it is useful to discuss them separately.
Insofar as the interest in informing the electorate means nothing more than the provision of additional information that may either buttress or undermine the argument in a document, we think the identity of the speaker is no different from other components of the document’s content that the author is free to include or exclude.. We have already held that the State may not compel a newspaper that prints editorials critical of a particular candidate to provide space for a reply by the candidate. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit. Moreover, in the case of a handbill written by a private citizen who is not known to the recipient, the name and address of the author add little, if anything, to the reader’s ability to evaluate the document’s message. Thus, Ohio’s informational interest is plainly insufficient to support the constitutionality of its disclosure requirement.
The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio’s submission that this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large. Ohio does not, however, rely solely on § 3599.09(A) to protect that interest. Its Election Code includes detailed and specific prohibitions against making or disseminating false statements during political campaigns. Ohio Rev. Code Ann. §§ 3599.09.1(B), 3599.09.2(B) (1988). These regulations apply both to candidate elections and to issue-driven ballot measures. Thus, Ohio’s prohibition of anonymous leaflets plainly is not its principal weapon against fraud. Rather, it serves as an aid to enforcement of the specific prohibitions and as a deterrent to the making of false statements by unscrupulous prevaricators. Although these ancillary benefits are assuredly legitimate, we are not persuaded that they justify § 3599.09(A)’s extremely broad prohibition.
As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources. It applies not only to elections of public officers, but also to ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage. It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance. It applies no matter what the character or strength of the author’s interest in anonymity. Moreover, as this case also demonstrates, the absence of the author’s name on a document does not necessarily protect either that person or a distributor of a forbidden document from being held responsible for compliance with the Election Code. Nor has the State explained why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection. We recognize that a State’s enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here.
V
Finally, Ohio vigorously argues that our opinions in First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978), and Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), amply support the constitutionality of its disclosure requirement. Neither case is controlling: The former concerned the scope of First Amendment protection afforded to corporations; the relevant portion of the latter concerned mandatory disclosure of campaign-related expenditures. Neither case involved a prohibition of anonymous campaign literature.
In Bellotti, we reversed a judgment of the Supreme Judicial Court of Massachusetts sustaining a state law that prohibited corporate expenditures designed to influence the vote on referendum proposals. 435 U. S. 765. The Massachusetts court had held that the First Amendment protects corporate speech only if its message pertains directly to the business interests of the corporation. Id., at 771-772. Consistently with our holding today, we noted that the “inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_r_state
|
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 "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.
UNITED STATES v. INDEPENDENT SCHOOL DIST. NO. 1 OF OKMULGEE COUNTY, Okl. et al.
No. 4698.
United States Court of Appeals Tenth Circuit.
Jan. 14, 1954.
Herman Greitzer, Attorney, Department of Justice, Washington, D. C. (Samuel D. Slade, Atty., Department of Justice, Washington, D. C., Warren E. Burger, Asst. Atty. Gen., and Frank D. McSherry, U. S. Atty., Muskogee, Okl., were with him on the brief), for appellant.
Jerry Stone, Asst. County Atty., Norman, Okl., and L. L. Cowley, Okmulgee, Okl. (Edgar R. Boatman, County Atty., Okmulgee, Okl., was with them on the brief), for appellees.
Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.
MURRAH, Circuit Judge.
This is an appeal from a judgment denying recovery of a claim of the United States for overpayments made to ap-pellee, Independent School District No. 1, Okmulgee County, Oklahoma under the community school lunch program.
The disputed funds were disbursed to the school board for the district under a valid contract between the War Food Administration and the Board of Education for the establishment of a community school lunch program in certain schools under jurisdiction of the board. By the terms of the agreement the War Food Administration agreed to reimburse the school district at certain stipulated rates per meal served in the schools under the program. The contract further provided that the board should keep full and complete records of all operations under the agreement, including the number and type of meals served each day, both free and for payment, the income received, all expenditures made, itemized receipts for all food purchased, and receipts of commodities from administrative agencies of the United States. The board subsequently contracted in exact terms with the Department of Agriculture, as successor to the War Food Administration.
In the course of the operation of the program, the school board submitted claims to the United States for reimbursement under the agreement totaling $6,334.15. These amounts were paid. A subsequent audit by the Department of Agriculture, however, revealed that the board had failed to maintain adequate records to substantiate the total claims made and payments received, as required by the agreement. It was found that as a result overpayments had been made to the board in an amount of $1,976.20.
After demand had been made and refused, the United States commenced this suit against the defendants for the amount of the overpayments as for money had and received under a mistake of fact. It is said that the defendants will be unjustly enriched if allowed to retain the funds and should therefore be required to make restitution.
Denying recovery, the trial court concluded that the Oklahoma legislation authorizing the school districts to enter into agreements with the United States for the community school lunch program did not authorize the filing of excessive claims or the receipt of excessive amounts by the school board, or its representatives, under the terms of the contract, and no indebtedness could therefore arise from such unauthorized acts. It further concluded that no judgment could be entered in favor of the United States since it had not complied with the procedural requirements of Title 62 O.S.A. §§ 361-364. These sections prohibit judgments based on contracts against a municipality (including school districts) by any court of any county in the State of Oklahoma except in accordance with the prescribed procedure.
The defendants on appeal also invoke Article 10, Sec. 26 of the Oklahoma Constitution and Title 62 O.S.A. § 479 to preclude recovery by the United States in absence of a valid prior appropriation by the county for the overpayments.
The first question for determination is whether the law of Oklahoma controls or conditions the government’s right of action to recover funds disbursed by it in the exercise of constitutional functions or powers.
We think that question was laid to rest in Board of Commissioners of Jackson County, Kan. v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313; Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838; United States v. Allegheny County, 322 U.S. 174, 64 S.Ct. 908, 88 L.Ed. 1209; United States v. Standard Oil Company, 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067.
In the Clearfield case the government sued to recover on a forged government check, and the question was whether its right to recover was controlled by state law where the check was issued and paid or by federal law. The court left no doubt of the controlling effect of federal law, holding that when the federal government disburses its funds or pays its debts, it does so in the exercise of a constitutional power or function, and that the rights and duties incident to the exercise of that power have their roots in the federal law, and federal law controls. In the absence of applicable federal statutes, the federal courts fashion the remedies for the rights from the body of “federal common law”. And in the fashioning of those remedies, state law is applicable only insofar as it is deemed appropriate as a basis for the federal remedies. The same principle applies whether the federal relations affected are non-contractual in character, United States v. Standard Oil Company, supra; or even though the claim is against the state or a subdivision thereof, Board of Commissioners of Jackson County, Kan. v. United States, supra; Bryan County, Okl. v. United States, 10 Cir., 123 F.2d 782.
The funds which the government seeks to recover were disbursed to a subdivision of the state under authority of federal law and in the exercise of a constitutional function. And they were paid under conditions and circumstances which raise a duty or an obligation to repay that which was mistakenly disbursed. In the performance of the constitutional function there is no express or implied disposition to subordinate correlative federal rights to state law, and no reason is suggested or apparent for conditioning the government’s rights or remedies upon state law. Whether, therefore, the asserted remedy be for money had and received or restitution for unjust enrichment, the right to recover under controlling federal law is plain.
The judgment is reversed with directions to enter judgment for the stipulated amount of the claim.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
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.
PRINCETON UNIVERSITY et al. v. SCHMID
No. 80-1576.
Argued November 10, 1981
Decided January 13, 1982
Nicholas deB. Katzenbach argued the cause for appellants. With him on the briefs for appellant Princeton University were Thomas H. Wright, Jr., and Margaret B. G. Freiberg. James R. Zazzali, Attorney General, and Michael R. Cole, Assistant Attorney General, filed a brief for appellant State of New Jersey.
Sanford Levinson■ argued the cause for appellee. With him on the brief were Jeirold Kamensky and Douglas Lay cock
Briefs of amici curiae urging reversal were filed by R. Claire Guthrie and Christine Topping Milliken for the American Council on Education et al.; and by James Roosevelt, Jr., and Kay H. Hodge for the Massachusetts Institute of Technology.
Matthew W. Finkin filed a brief for the American Association of University Professors as amicus curiae urging affirmance.
Michael F. Spicer filed a brief for the Association of Independent Colleges and Universities in New Jersey as amicus curiae.
Per Curiam.
I
Appellee Schmid was arrested and charged with criminal trespass while distributing political materials on the campus of Princeton University. Schmid was not a student at Princeton University. Under University regulations then in effect, members of the public who wished to distribute materials on the campus were required to receive permission from University officials. Appellee was tried in Princeton Borough Municipal Court and on October 20, 1978, the trial judge issued an opinion convicting appellee and fining him $15 plus $10 costs. A de novo trial in the New Jersey Superior Court, Law Division, also resulted in conviction and the same fine was imposed. While appeal was pending to the Superior Court, Appellate Division, the case was certified for review by the New Jersey Supreme Court. That court invited the University to intervene and participate as a party, which it did!
The New Jersey Supreme Court reversed the judgment of conviction, holding that appellee’s rights of speech and assembly under the New Jersey Constitution had been violated. State v. Schmid, 84 N. J. 535, 423 A. 2d 615 (1980). The University filed a notice of appeal and jurisdictional statement. Its claim is that the judgment below deprives it of its rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution. The State of New Jersey did not file a separate jurisdictional statement but joined in that of the University. We postponed jurisdiction, 451 U. S. 982 (1981), and now dismiss the appeal for want of jurisdiction.
II
The State of New Jersey has filed a brief in this Court asking us to review and decide the issues presented, but stating that it'“deems it neither necessary nor appropriate to express an opinion on the merits of the respective positions of the private parties to this action.” Brief for Appellant State of New Jersey 4. Had the University not been a party to this case in the New Jersey Supreme Court and had the State filed a jurisdictional statement urging reversal, the existence of a case or controversy — and of jurisdiction in this Court— could not be doubted. However, if the State were the sole appellant and its jurisdictional statement simply asked for review and declined to take a position on the merits, we would have dismissed the appeal for want of a case or controversy. We do not sit to decide hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties before us. See, e. g., Sierra Club v. Morton, 405 U. S. 727, 731-732 (1972); Flast v. Cohen, 392 U. S. 83, 99 (1968). Thus the presence of the State of New Jersey in this case does not provide a sound jurisdictional basis for undertaking to decide difficult constitutional issues.
Princeton defends its own standing and our jurisdiction on the grounds that it was a party to the case in the New Jersey Supreme Court, that it is bound by the judgment of that court with respect to the validity of its regulations, and that no other forum is available in which to challenge the judgment on federal constitutional grounds. We have determined, however, that we lack jurisdiction with respect to Princeton. The New Jersey Supreme Court noted that while the case was pending on appeal, the University substantially amended its regulations governing solicitation, distribution of literature, and similar activities on University property by those not affiliated with the University. 84 N. J., at 539-541, n. 2, 568, 423 A. 2d, at 617-618, n. 2, 633. The opinion below rested on the absence of a reasonable regulatory scheme governing expressional activity on University property, but the regulation at issue is no longer in force. Furthermore, the lower court’s opinion was careful not to pass on the validity of the revised regulation under either the Federal or the State Constitution. Thus the issue of the validity of the old regulation is moot, for this case has “lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract questions of law.” Hall v. Beals, 396 U. S. 45, 48 (1969) (per curiam).
Princeton does not claim standing on the ground that a private party may intervene and challenge the reversal of a criminal conviction of another party. See Linda R. S. v. Richard D., 410 U. S. 614, 619 (1973). Its alleged standing in this Court rests on its claim that the judgment below would be res judicata against it and that it has thus finally been deprived of the authority to enforce the regulation as it stood prior to amendment. Since the judgment, however, does not prevent it from having the validity of its new regulation ruled upon in another enforcement action, the University is without standing to invoke our jurisdiction. Accordingly, we dismiss the appeal.
So ordered.
Justice Brennan took no part in the consideration or decision of this case.
That Princeton had standing in state court does not determine the power of this Court to consider the issue. Any determination of who has standing to assert constitutional rights is a federal question to be decided by the Court itself. Cramp v. Board of Public Instruction, 368 U. S. 278, 282 (1961); United States v. Raines, 362 U. S. 17, 23, n. 3 (1960).
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_usc1
|
21
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America, Plaintiff-Appellee, v. Robert STEVENS, Defendant-Appellant.
No. 74-1592.
United States Court of Appeals, Sixth Circuit.
Aug. 15, 1975.
Barry L. Howard, May, Burston, May & Greenspan, Detroit, Mich., for defendant-appellant.
Ralph B. Guy, Jr., U. S. Atty., Robert D. Sharp, Asst. U. S. Atty., Peter Rosen, DEA Strike Force, Detroit, Mich., for plaintiff-appellee.
Before EDWARDS and ENGEL, Circuit Judges, and CECIL, Senior Circuit Judge.
ENGEL, Circuit Judge.
Robert Stevens was convicted by a jury in the Eastern District of Michigan of two counts of violating 21 U.S.C. § 841(a)(1), part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. Count One charged Stevens with possessing heroin with the intent to distribute it, in violation of Section 841(a)(1); Count Two charged him with the actual distribution of heroin in violation of Section 841(a)(1). Upon conviction, he was sentenced to three years on each count, the sentences to run concurrently.
On August 29,1972 Stevens was asked by a female acquaintance if he would furnish narcotics to her friend. Stevens agreed and later that day turned a quantity of heroin over to the woman’s friend, who was in fact a government undercover agent. At the trial the undercover agent testified to the transaction in which he purchased drugs from appellant. The woman who introduced them did not appear at trial at all, nor did either side attempt to obtain her appearance.
Stevens raises three issues on appeal. However, only the third merits extended discussion.
Stevens first complains that the failure of the government to produce the “cooperating witness” denied him a fair trial, particularly as it related to his defense of entrapment which he claims would be corroborated by that witness. He did not request the government at any time to produce the witness, nor did he complain of this problem to the trial judge below. Nevertheless, Stevens claims that the government’s failure to produce the witness constitutes plain error, F.R.Crim.P. 52(b), and merits reversal of the judgment below.
This issue is without merit. Although he knew who the witness was, Stevens made no effort to have the witness produced at trial, nor did he otherwise bring the issue to the attention of the trial court. In United States v. Craig, 477 F.2d 129 (6th Cir. 1973), the government failed to produce the go-between who introduced the special agent to the defendant for the purpose of making a narcotics buy. The defendant claimed that upon his request, he was entitled to have the witness produced. This court did not agree:
“The government is not ordinarily compelled to call all witnesses competent to testify including special agents or informers [citations]. The evidence upon which the appellant was convicted was secured by government agents personally and was in no way dependent on any informer [citations]. The Government was not required to produce the informer under the circumstances of this case; and we find defendant’s contention in this regard to be without merit.” 477 F.2d 130, 131 (1973)
Stevens’ second claim of error is that the district judge abused his discretion in permitting the government to cross-examine him regarding his prior convictions. After first being asked if he had ever been convicted of a felony and responding “Certainly”, Stevens was asked:
“What felony or felonies have you been convicted of?”
Stevens claims that this question, in going beyond the initial inquiry as to whether prior convictions had occurred, was improper. The court overruled defense objection to the question, but properly instructed the jury that its admission was solely to test credibility. The government attorney did not further pursue the matter. The inquiry, so limited, was proper. United States v. Bowen, 500 F.2d 41 (1974), cert. denied 419 U.S. 1003, 95 S.Ct. 322, 42 L.Ed.2d 278 (1974). See also United States v. Jackson, 344 F.2d 922 (6th Cir. 1965), cert. denied 382 U.S. 880, 86 S.Ct. 169, 15 L.Ed.2d 120 (1965).
Stevens’ third ground for appeal was that the trial court erred in refusing his motion to dismiss one of the counts because “there was however only one transaction between the same people involving the same substance.”
As correctly pointed out by appellant, the single act of sale of heroin to the undercover agent formed the entire basis for his conviction of both counts of the indictment. In this respect, the case is identical to two cases recently decided in the Fourth Circuit, United States v. Atkinson, 512 F.2d 1235 (1975); United States v. Curry, 512 F.2d 1299 (1975).
In Atkinson and Curry, as here, appellants were charged and convicted on two counts of violation of § 841(a)(1) for possession with intent to distribute and distribution of heroin. In Atkinson, the defendant was given two fifteen-year sentences for the offenses, the sentences to run consecutively. The court remanded the case to the district court to vacate one of the two sentences imposed, stating:
Appellant Molden Atkinson asserts that the two 15-year sentences imposed on him exceeded the permissible sentencing limit for his involvement in the drug transaction. On the facts of this case, we agree. His possession of the drug was not shown to exist separately from the moment in which the heroin was transferred to the government agent. Only when he produced the heroin for the sale was his possession shown to exist. Under these circumstances, while the single act was proof of two offenses, we are of opinion it was not the intent of Congress to increase the maximum sentence when two violations of the same subsection of the statute are shown by a single act. Cf. Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957).
Our ruling as to sentencing under 21 U.S.C. § 841(a)(1) is based on the limited factual situation presented here. We do not reach the question of multiple sentencing under other situations which may or may not arise. 512 F.2d at 1240
In Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), the Supreme Court faced a somewhat similar question where the defendant was convicted of entering a bank for the purpose of committing a felony, 18 U.S.C. § 2113(a), and bank larceny, 18 U.S.C. § 2113(b). As construed by this court in United States v. Fried, 436 F.2d 784 (6th Cir. 1971), and several other courts of appeals, Prince permits separate convictions on the two charges, but not multiple sentences.
We are in agreement with the Fourth Circuit that the logic of Prince supports a like determination under the facts here. The question is one of legislative intent, and this construction appears best designed to achieve it. See United States v. Valot, 481 F.2d 22 (2nd Cir. 1973), and discussion therein of Section 841(a) and other sections of the Comprehensive Drug Abuse Prevention and Control Act of 1970.
It is true that allowing the judgment of conviction on each count to stand, but permitting only a single sentence presents the anomaly of one conviction going apparently unvindicated. That the solution may be untidy in this respect did not bother the court in Prince v. United States, supra, nor does it concern us when it possesses the superior virtue of achieving a just result which is consistent with legislative intent.
The trial court here imposed identical and concurrent sentences on each count, thus distinguishing this case from those cited. While it is true that this substantially reduces the potential prejudice to defendant which exists where the sentences are consecutive, we cannot hold that it altogether eliminates it and renders the effect harmless. United States v. Machibroda, 338 F.2d 947 (6th Cir. 1964).
The judgment of conviction is accordingly affirmed except as to sentencing. The case is remanded to the district court for the purpose of vacating one of the two concurrent sentences imposed upon the defendant.
. 21 U.S.C. § 841(a)(1) provides:
(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
. In United States v. Upthegrove, 504 F.2d 682 (6th Cir. 1974), the defendants were convicted of unlawful possession of phencyclidine [21 U.S.C. § 844(a)] and of possession of the same drug with intent to distribute it, [21 U.S.C. § 841(a)(1)]. We had earlier ruled that the simple possession charge was a lesser and included offense within a charge of possession with intent to distribute, United States v. Wade, 502 F.2d 144 (6th Cir. 1974), and accordingly in Upthegrove, held that both the judgment of conviction itself as well as the sentence under the lesser charge was fully merged and could not stand. Here, both distribution and possession with intent to distribute are subject to maximum fifteen year penalties. Hence, one cannot be said to be lesser and included within the other in the usual sense. The possession with intent charge can be proved without proof of actual distribution and the distribution charge can conceivably be proved without proof of possession. Thus two offenses can exist, for each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911).
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_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".
IMPERIAL INSURANCE, INCORPORATED, American Homeowners Insurance Company v. The EMPLOYERS’ LIABILITY ASSURANCE CORPORATION, Limited, Appellant.
No. 23031.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 14, 1970.
Decided May 28, 1970.
Rehearing Denied Aug. 7, 1970.
Leventhal, Circuit Judge, on original hearing concurred in result and in parts of majority opinion and filed opinion, but on rehearing dissented from denial of petition for rehearing and on reconsideration dissented from judgment of reversal.
Mr. Alexander M. Heron, Washington, D. C., with whom Messrs. Preston C. King, Jr., and Murray S. Simpson, Jr., Washington D. C., were on the brief, for appellant.
Mr. Joseph W. Kiernan, Washington, D. C., with whom Mr. J. Philip Smith, Washington, D. C., was on the brief, for appellees.
Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and LEVENTHAL, Circuit Judge.
FAHY, Senior Circuit Judge:
Imperial Insurance, Incorporated, and others, appellees, sued Employers’ Liability Assurance Corporation, appellant, on a policy issued by Employers’ to Imperial protecting the latter against:
Loss of Money, Securities and other property which the insured shall sustain, to an amount not exceeding in the aggregate [$100,000] * * * through any fraudulent or dishonest act or acts committed by any of the Employees, acting alone or in collusion with others.
Recovery in the full amount of liability was sought, because of payments in excess of that amount made by Imperial under three fire and casualty policies issued by it allegedly by reason of the fraudulent or dishonest act or acts of its vice-president and general manager. The jury rendered a verdict in favor of Imperial for $100,000.00. On this appeal by Employers’ from the ensuing judgment we hold that the policy sued on covered the type of loss claimed. We reverse, however, because of an instruction to the jury which we deem erroneous and prejudicial.
The three policies under which it paid the losses were among a number issued by Imperial in an expansion of its business by the general manager into surplus lines of insurance which entailed risks of greater than normal hazards. We need not detail the evidence on the issue whether the risks which led to the payments claimed as losses were assumed by Imperial as a consequence of the fraudulent or dishonest act or acts of its general manager; for Employers’ does not now dispute the sufficiency of the evidence to support the verdict based on the jury’s findings to that effect, though it does reserve for our decision the correctness of a portion of the court’s instructions to the jury.
I.
We consider first Employers’ contention that the consequential loss Imperial suffered is not covered by the policy. More precisely the contention is that Employers’ insured Imperial only against the physical loss of “Money, Securities and other property” due to the conduct of Imperial’s employees, not against a consequential pecuniary loss measured by payments it made to third parties under Imperial policies. Employers’ supports this contention by reference to the definition of “Money” in the policy sued on:
“Money” means currency, coins, bank notes and bullion; and travelers checks, register checks and money orders held for sale to the public.
Employers’ further supports its position that it insured Imperial only against loss of a physical character by contending that these consequential losses of Imperial do not come within “other property.” It says the maxim ejusdem generis requires “other property” likewise to be limited to property of a physical or corporal character. Still other provisions may be thought to add plausibility to Employers’ position. Thus, in its reference to loss “Inside and Outside” the premises of Imperial the policy refers to Money and Securities lost “by the actual destruction, disappearance or wrongful abstraction thereof,” and “loss of other property” by burglary or robbery, and, moreover, Section 9 provides that Employers’ shall in no event be liable as respects securities or property for more than the actual cash value thereof.
Nevertheless, we are constrained to hold that it is not so clear consequential losses were not covered as to free the policy of ambiguity in this regard. The loss here was a pecuniary depletion of Imperial’s monetary assets. In that sense it was a loss of its property. Moreover, the definition of money as “currency, coins, bank notes and bullion,” when followed by the general expression “other property,” does not clearly exclude liability to compensate for payments made from the insured’s funds, if due to the misconduct described. It is true this gives a meaning to the policy not explicitly expressed. But it obtains support from the general purpose of the policy to protect against loss due to the fraudulent or dishonest conduct of an employee. To adopt a more restrictive interpretation tied to the policy’s definition of the medium by which loss may be represented, such as “currency, coins” and the like, is not required, particularly since the whole of the definition leaves unclear what is intended by the loss of “other property.”
While there are cases which point in a direction favorable to appellant, the case of Paddleford v. Fidelity & Casualty Co., 100 F.2d 606 (7th Cir. 1938), cert. denied, 306 U.S. 664, 59 S.Ct. 789, 83 L.Ed. 1060 (1939), gives support to Imperial’s position that coverage extends beyond loss of money or property by physical expropriation or destruction. There the loss was due to fictitious and fraudulent trades carried on by the manager of the insured. He filled in checks for more than he was authorized to do, resulting in depletion of the insured’s bank account. The court held that the consequent loss was covered by a bond protecting against dishonest acts of an employee which caused loss of “money, currency, bullion, bonds, debentures, scrip, certificates, warrants, transfers, coupons, bills of exchange, promissory notes, bills of lading, warehouse receipts, checks or other similar securities in which the insured has a pecuniary interest.” The bond described “money” to mean “currency coin bank notes, bullion and uncan-celled United States postage and Revenue stamps.” From this it was argued that the loss sustained was not money but merely a depletion of the insured’s credit with the bank. The court described this position as meaning the property protected was only that which was tangible, as Employers’ now urges, and held that this was not justified. The court pointed to the description of property, other than money, as including “checks or other similar securities,” and noted that the policy protected against forgery. However, the court added:
Irrespective of whether the term “money,” as that term is defined in the bond, is sufficient to cover plaintiffs’ loss, we are of the opinion that the word “checks” is sufficiently broad to include a loss sustained by their improper and unauthorized use which directly resulted in the depletion of plaintiffs’ bank account.
100 F.2d at 614.
See, also, Hooker v. New Amsterdam Casualty Co., 33 F.Supp. 672 (W.D.Ky. 1940); Insurance Company of North America v. Greenberg, 405 F.2d 330 (10th Cir. 1969).
Quite recently the Supreme Court reiterated in United States v. Seckinger, 397 U.S. 203, 216, 90 S.Ct. 880, 888, 25 L.Ed.2d 224 (1970), the principle that when ambiguous a contract “should be construed less favorably to that party which selected the contractual language.” This canon of construction has not infrequently been applied to insurance policies. American Surety Co. v. Pauly, 170 U.S. 133, 144, 18 S.Ct. 552, 42 L.Ed. 977 (1898); Smith v. Indemnity Insurance Co., 115 U.S.App.D.C. 295, 318 F.2d 266, cert. denied, 375 U.S. 904, 84 S.Ct. 497, 11 L.Ed.2d 146 (1963); Continental Casualty Co. v. Beelar, 132 U.S.App.D.C. 1, 2, 405 F.2d 377, 378 (1968). We apply it to this policy and agree with the District Court that it included the kind of loss claimed by Imperial.
II.
We consider now whether Imperial complied with the proof of loss provisions of the policy. Its Section 8 provides :
Upon knowledge or discovery of loss or of an occurrence which may give rise to a claim for loss, the Insured shall (a) give notice thereof as soon as practicable to the Company or any of its authorized agents and * * * (b) file detailed proof of loss, duly sworn to, with the Company within four months after the discovery of loss.
From the foregoing it seems clear that upon either (1) discovery of loss or (2) discovery of an occurrence which may give rise to a claim for loss, notice must be given under “(a)” above. It is not so clear when the detailed proof of loss must be filed, for the reference to this in “(b)” ambiguously states that it is to be filed within four months after discovery of loss, thus omitting reference to discovery of an occurrence which may give rise to a claim for loss. It is not clear whether the four months begins to run from the latter occurrence or from the actual discovery of loss. What actually occurred is that Imperial wrote to Employers’ January 6, 1965, as follows:
Please accept this as notice of a probable claim under the subject bond [the policy in suit].
We are not in a position at this time to furnish complete details as to a claim; however, if you wish to set up a file, may I suggest you contact Mr. R. L. Hayden, Jr., at this office. [The office of Imperial]
The detailed and formal proof of loss, however, was not filed until June 9, 1965.
Imperial’s position is that the “occurrence” which triggers the requirement of notice, when Section 8 is read with Section 11 of the policy, did not occur as early as January 6, 1965, or until within four months of June 9, 1965, at which time Imperial discovered the aggregate liability of Employers’ or, in any event, Imperial contends, there was an issue as to when the loss was discovered and this issue was properly submitted to the jury. Employers’, however, contends the evidence established as matter of law that Imperial discovered the loss prior to the end of December 1964, and that accordingly proof of loss, not filed within four months of such discovery, was too late. It accordingly sought the instruction set forth in the margin, which was denied. The denial was proper, for, all else aside, the instruction disregarded the issue of waiver of the four months requirement, which was raised by the evidence.
The submission to the jury of the issues of timeliness of proof of loss and of waiver was in the following terms:
You must determine exactly when Imperial discovered the loss which it claims by virtue of the fraudulent or dishonest act or acts by [the general manager]. If you find from the evidence in the case that Imperial discovered that loss sometime within a four month period, ending on June 9, 1965, then the proof of loss was timely filed, but if you find that the loss was discovered more than four months prior to June 9, 1965, then the proof of loss was not timely filed. If you find from the evidence that the proof of loss was not timely filed, then I instruct you that there has not been technical compliance with the provision of law which says that it must be filed within one hundred and twenty days from the time the loss was discovered. However, recovery is not necessarily denied merely because the proof of loss was not timely filed. This is so because you may find from the evidence, as a matter of fact, that there has been a waiver of the provision of the policy requiring proof of loss within a certain period.
Employers’ contends that this confused the issue of timeliness by failing to point out that proof was to be filed within four months from actual discovery of loss, not from ascertainment of its full amount. But Employers’ did not object to the instruction as given. No clarification was sought. The confusion was not called to the trial court’s attention. In this situation we are not justified in reversing because of this instruction. The case was tried by experienced counsel for these companies. Employers’ sought a verdict upon the basis of the evidence — reserving only particular legal questions for review should it fail in that regard. We are not called upon to depart from this trial plan of counsel. Moreover, there was ample evidence upon which to submit the issue of waiver to the jury, assuming waiver was not required to be by written endorsement on the policy, a question we now consider.
III.
Section 19 of the policy provides :
Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this Policy or estop the Company from asserting any right under the terms of this Policy; nor shall the terms of this Policy be waived or changed, except by endorsement issued to form a part of this Policy signed by an authorized representative of the Company.
The District Court held this provision did not prevent waiver orally or by conduct of the time specified in the policy for proof of loss, or preclude estoppel of Employers’ from insistence upon compliance by Imperial with the four month provision. The court distinguished this provision from others which constitute “a part of the contract of insurance and the proper investigation as to the issues of its formation and existence. Such a clause [Section 19] * * * has no reference to those stipulations which are to be performed after the loss, such as giving notice and furnishing proof of loss.” While the instructions on waiver were not objected to by Employers’, at an earlier stage of the proceedings there had been a full exchange between court and counsel at which Employers’ position had been rejected. We accordingly hold that Employers’ adequately reserved for review its position on waiver. We agree, however, that the time specified in the policy for proof of loss could be waived orally or by conduct. This is the fair implication of our decision in Ace Van & Storage Co. v. Liberty Mutual Insurance Co., 119 U.S.App.D.C. 6, 336 F.2d 925 (1964), and is supported by the holding of Prudential Ins. Co. of America v. Saxe, 77 U.S.App.D.C. 144, 158, 134 F.2d 16, 30, cert, denied, 319 U.S. 745, 63 S.Ct. 1033, 87 L.Ed. 1701 (1943).
IV.
We now come to the instruction which we conclude erroneously prejudiced Employers’. Of critical importance was the factual issue of whether the general manager acted fraudulently or dishonestly. The jury was called upon to appraise the character of his conduct. The court recognized this; and as has been held, “there must [be found to] exist a compelling sense of conscious wrong rather than a mere omission or act amounting to negligence,” Sade v. Nat. Surety Corp., 203 F.Supp. 680, 684 (D.D.C.1962), aff’d, 114 U.S.App.D.C. 281, 314 F.2d 286 (1963), or a mere lack of judgment, Sherwood & Roberts-Kennewick, Inc. v. St. Paul Fire and Marine Ins. Co., 322 F.2d 70, 75 (9th Cir. 1963). The jury’s task was made difficult by the indirect type of the loss involved. There is no evidence the loss attributed to the general manager produced a personal gain. Unlike losses from a direct theft or manipulation of money or securities, the conduct of the general manager does not so readily suggest the intentional wrongdoing against which the policy was designed to protect.
To establish his fraudulent or dishonest conduct Imperial heavily relied upon the general manager’s failure to disclose the surplus risk policies in an annual statement of financial position required to be filed with the Superintendent of Insurance for the District of Columbia by D.C.Code § 35-103. In calling the jury’s attention to these provisions the court instructed the jury, having also in mind, no doubt, Title 35 § 1312, set forth in the margin, as follows:
Any officer or employee signing and swearing to that annual statement, knowing that the statement contains false information is subject to criminal prosecution. If you find from the evidence that the employee, [the general manager], signed and swore to the Imperial Insurance Company’s annual statement of 1963, that that statement did not contain, or could not contain the excess surplus lines, risks, he had committed the company on or had caused the company to be committed on during the year 1963 and which was still in force on December 31, 1963 then you are instructed that such act on [the general manager’s] part was fraudulent and dishonest within the terms of the bond, only if, as a result of violation of the statute, loss is in fact sustained by Imperial Insurance Company, Inc.
At the conclusion of the instructions, in response to inquiry by the court, counsel for Employers’ stated: “I only object to that portion which had to do with [the general manager]; I object to the statement concerning criminal prosecution under the statute.”
While it is true the objection may be construed as directed only to the reference to criminal prosecution, we think fairly construed it goes to the whole tenor of the above instruction, and that accordingly Employers’ was not under obligation to ask that it be given in terms more favorable to Employers’. We feel called upon to determine whether the instruction was erroneously prejudicial. We think it was.
This civil litigation in our view should. not have been complicated by this reference to possible criminal prosecution of the general manager. This is not to say that Section 35-103 itself had no place in the trial. A failure on the part of the general manager to comply with the requirement of that section in signing and swearing to the annual statement could well be considered by the jury in determining whether or not he engaged in fraudulent or dishonest conduct, and if so, whether the evidence connected such conduct with the loss. But to imply the availability of criminal prosecution— perhaps the commission of a crime established by proof beyond a reasonable doubt — had a tendency to lead the jury to consider the general manager’s signing of the statement in a more serious light than otherwise the jury might have done. Moreover, for the company to have been required to defend as it were against the indicated possibly criminal conduct of the general manager would be unduly prejudicial, even though some logical relationship between the civil and the criminal aspects of the matter could be thought to exist.
To portray the conduct of the general manager to be such as to bring him into possible conflict with the criminal law, if error was by its nature prejudicial. That it was error is emphasized by failure of the instruction to make clear that to come within the criminal provisions the general manager must have made a material statement known to be false. Under Section 35-1312, as under the policy, the question for the jury would be whether the general manager’s failure to note the surplus risk policies in the 1963 annual statement was a negligent omission, a business judgment, or, on the other hand, dishonest or fraudulent. With the support of Imperial’s accountant he testified that Section 35-103 did not require the recording of commitments on which no policies had been issued, premiums received, or losses reported. The first sentence of the instruction in referring to the criminal statute, Section 35-1312, correctly indicated that criminality attached to a “knowing” false statement. In the next sentence, however, referring to the facts of this case, the instruction attributed fraudulent and dishonest conduct to the general manager if he signed and swore to the statement if it “did not contain, or could not contain” the data about the risks. Aside from other problems raised by this instruction, we think to permit the jury to find a fraudulent or dishonest state of mind from the signing of the statement was reversible error.
The case of Lucy Webb Hayes National Training School v. Perotti, 136 U.S. App.D.C. 122, 419 F.2d 704 (1969), referred to by Judge Leventhal, develops the several problems of admissibility and weight to be accorded a licensing regulation, related to a patient’s safety in a hospital and alleged to have been violated in a case of death charged to the negligence of the owners or operators of the hospital.
Whatever relevance the Perotti case might have to the admissibility of the requirement of Section 35-103 that the general manager file an annual statement of Imperial’s financial position, there is no suggestion in Perotti that the jury in our case could properly consider the criminal penalties which might flow from a violation of Section 35-103 any more than Perotti indicates that it would have been proper there for the jury to consider any criminal sanction which might attach to a violation of the regulation involved in that ease.
Other questions raised do not require discussion. We find no significant error except as stated in Part IV of this opinion.
Reversed and remanded for further proceedings not inconsistent with this opinion.
. American Homeowners Insurance Company became a successor to Imperial Insurance and was added as an original party plaintiff as a result of amalgamation.
. Recovery was also claimed for certain uncollected premiums on other policies issued by Imperial and attributable to like conduct of the general manager.
. See Levy v. American Mutual Liability Insurance Co., 195 Md. 537, 73 A.2d 892 (1950), dicta in Virginia-Carolina Chemical Corp. v. Hartford Accident & Indemnity Co., 339 F.2d 413 (4th Cir. 1964); and see Degener v. Hartford Accident & Indemnity Co., 92 F.2d 959 (3d Cir. 1937).
. Section 11 provides:
All loss incidental to an actual or attempted fraudulent, dishonest or criminal act or series of related acts at the Premises, whether committed by one or more persons, shall be deemed to arise out of one occurrence.
. The jury are instructed that the plaintiff failed to file with the defendant any proof of loss within four months from the discovery of the loss, as required by the bond, because plaintiff discovered the loss well prior to the end of December, 1964, and did not file a proof of loss until June 9, 1965. [Requested instruction No. 28]
. At the request of Imperial a meeting was held with representatives of Employers’ on March 4, 1965 to discuss the progress of the investigation into the insurance claim. While denied by witnesses for Employers’, the following statement was attributed to Mr. Schramm, Employers’ Washington Branch Manager: “I do not want you to file a proof of loss piecemeal. * * * I want you to find out what your entire loss is and then after you have found that out, then file a proof of loss covering all of the losses that you have sustained. Do not file a partial or piecemeal claim. * * * Do not file it that way. * * * Wait and file it after you have gotten all of the facts.” There was further testimony that the officers of Imperial and Employers’ were located on the same floor of the same building, and that Mr. Schramm of Employers’ was kept informed of the progress of the investigation after the March 4th meeting and that it was not until May 1965 that he requested a proof of loss statement.
. 35 D.C.Code § 1312 provides:
False statements — Penalties.
Any director, officer, agent, or employee of any company who subscribes to, makes or concurs in making or publishing any annual or other statement required by law, knowing the same to contain any material statement which is false, shall be fined not more than $5,000 or imprisoned for not more than five years, or both. (Oct. 9, 1940, 54 Stat. 1069, ch. 792, Oh. II, § 9.)
. For example, because the criminal provision speaks in terms of material false statements, not omissions, it should have been explained under what circumstances an omission could cause other statements contained in the report to be materially false. Moreover, we find no evidence that the annual statement itself, whatever its defects, caused the loss sustained by Imperial. Furthermore, if the concealment was related to the loss, the instruction should have focused upon such relationship rather than upon possible criminal conduct.
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_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.
CALDWELL v. UNITED STATES.
Nos. 6699, 6700.
Circuit Court of Appeals, Seventh Circuit.
March 8, 1939.
Willis H. Hutson, Lawrence C. Traeger, and John D. Bolger, all of Chicago, Ill., and Forest' P. Tralles and Fred J. Hoffmeister, both of St. Louis, Mo., for appellant.
Arnold Raum, Sewall Key and L. W. Post, Sp. Assts. to Atty. Gen.,. James W. Morris, Asst. Atty. Gen., Michael L. Igoe, U. S. Atty., and David L. Bazelon, Asst. U. S. Atty., both of Chicago, Ill., and William J. Campbell, of Chicago, Ill., for the United States.
Before MAJOR, TREANOR, and KER-NER, Circuit Judges.
MAJOR, Circuit Judge.
These appeals are from judgments of the District Court denying plaintiff’s claim for a refund of income tax. Cause No. 6699 involves such tax in the amount of $5,985.11 for the year 1928, and Cause No. 6700 in the amount of $6,500.29 for the year 1929. The facts were stipulated and substantially the same questions are involved in each appeal. They will, therefore, be considered together.
The plaintiff is a sole surviving beneficiary and was the executor of the estate of his wife, Pauline W. Caldwell, who was the granddaughter of Paul Brown, and a legatee under his last will and testament. Paul Brown died testate November 18, 1927, being at the time of his death a resident of the City of St. Louis and State of Missouri. Letters testamentary were issued November 22, 1927, by the Probate Court of that city.
In Item 21 of his will, a one-sixth interest of all the residue and remainder of his estate was bequeathed and devised to each of the following persons: Inez Herford Brown, wife; Julia Radford, Georgie Pauline Blosser and Nellie Perkins Keller, daughters; Pauline W. Caldwell, granddaughter and deceased wife of plaintiff, and the Mercantile Trust Company, in trust for the benefit of the children of Paul Brown, Jr., a deceased son.
In Clause 20 of Item 21, it is directed that all inheritance, estate, transfer or succession taxes assessed against the trust estate established for the benefit of the children of Paul Brown, Jr., deceased, shall be paid out of the principal of the trust estate. In Item 1 of the codicil to Paul Brown’s will, the testator expressed the wish that the final settlement of his' estate be not made until three years after his death. The executors were instructed “to retain the residuary estate provided for in Item 21 of my said last will and testament, for a period of three years after my death, at which time the distribution of my said residuary estate shall be madé to the persons and corporations named in said Item 21.” The executors, during that period, were given the same powers and authority “with reference to control, management and disposition, that I have given unto the trustee in the trust created for the benefit of the children of Paul Brown, Jr.” The codicil further, after empowering the executors to make investments and reinvestments in their sole discretion, contains the following clause: “And I direct my Executors to pay over the net income and revenue received by them from the property and securities in their hands, from the date of my death until the final settlement of my estate, unto the beneficiaries named in Item Twenty-One of my said last will and testament; in the same proportions and the same manner as therein provided, in as nearly equal monthly installments as possible; the payments to begin on the fifteenth day of the second month after my death.”
The fair market value of assets of the estate at the date of his death was some $14,000,000, but in the probate proceedings such assets were valued at something more than $7,500,000. On July 18, 1928, the executors filed their first settlement with the Probate Court in which the value of the assets of the estate was placed at $6,368,000. Semi-annual reports were made thereafter in each of which the value of the assets was placed at something less than $5,000,000, until the last report made on December 4, 1930, which disclosed such assets to be worth $5,148,000. All of the specific bequests under the will were satisfied prior to July 18, 1928. Also, prior to that time, all known claims except those for additional estate and federal taxes were paid.
At the time of his death, Paul Brown was a member of the stock brokerage firm of Paul Brown and Company, and under the terms of the partnership agreement, surviving partners elected to continue the business, and the estate of Paul Brown became a limited or special partner in said brokerage firm and so continued for a period of two years subsequent to November 18, 1927.
The. net income from the residuary estate for the year 1928 was $681,520.91, including the sum of $88,563.32 due and owing to the estate from the partnership of Paul Brown and Company. This latter amount, however, was not actually received by the estate until January 21, 1929. During the year 1928, the estate paid a total of $894,415.58 in estate inheritance taxes and-federal estate taxes. After deducting commissions for services in collecting and distributing the income from the residuary estate, all of the income was distributed to the beneficiaries in accordance with the terms of the will. Payments were made to the legatees on an installment basis and were included in the settlements or reports filed by the executors and approved by the Probate Court. Plaintiff’s decedent’s share of the 1928 net income from the residuary estate of her grandfather was $111,549.32, which amount was included in her taxable income for 1928 upon which the tax in controversy was assessed. The executors employed a system of bookkeeping by which all items of income were credited to income account and all disbursements made by the executors for inheritance and estate taxes were charged to capital. The installment payments made to the various legatees during the year 1928 were charged on such books against the income account.
The same procedure was followed during the year 1929 — the income from the estate, the distribution made and the amount included in plaintiff’s decedent’s income tax return were substantially the same as in 1928. Inasmuch as only questions of law are to be determined, the exact figures for 1929 are not essential. This distinction is pointed out in that the income derived from the partnership of Paul Brown and Company was actually received by the estate in 1929, while the income from such partnership was not actually received in 1928.
In each case, the essential question presented is: Was the amount distributable in 1928 (or 1929) to plaintiff’s decedent as a beneficiary of the estate of Paul Brown, deceased, and actually received by her, properly included in her taxable income for the year in question, although payments by the estate during such year for federal estate and estate inheritance taxes exceeded the net income distributable to the beneficiaries? In addition to this question, applicable to the tax for both years, there is the further question as to the tax paid for the year 1928: Was that portion of the estate’s share of the distributable profits of the partnership of Paul Brown and Company, not actually received by it until the following year*, to be treated as distributable income of the estate for the taxable year so as to require inclusion in the income of the beneficiaries ? The court below, as to the 1928 tax, made the following conclusion of law: “That, under the Will, the sum of $681,520.91 was properly, distributable by the executors in 1928 to the beneficiaries of the residuary estate, including the plaintiff’s decedent, as the 1928 income and revenue from the residuary estate, even if the estate had no statutory net income as the result of the payment of Federal estate taxes and state inheritance taxes.” The same conclusion (except as to amounts) was made as to the year 1929. It is about this conclusion that the involved controversy largely revolves.
It is the contention of the plaintiff that inasmuch as the total income of the Paul Brown estate for each of the years in question was far less than the total amount paid by the executors thereof in estate and inheritance tax, that the estate had no net income during eith'er of these years; and it must be held that distributions made during those years were from the corpus of the estate rather than from income and are, therefore, not taxable to the legatees. There is no dispute but what such taxes paid by the estate for the years in question exceeded such income, but it is contended by the defendant that under the express language of the testator’s will, the executors were without authority to pay such taxes or any part thereof from said income, but were charged with the duty of distributing the income among the six legatees, including a one-sixth part to plaintiff’s decedent.
Such contention necessitates a reference to- material clauses of ' the will, which we have heretofore related. It seems there is little room for ■ doubt but what the testator, by the codicil to his will, directed that the residuary estate be preserved by the executors for a period of three years and that no distribution thereof be made during that time. It seems equally plain that it was the ’ purpose of the testator to provide for these legatees, all members of his family, during the period he had placed an inhibition upon the distribution of the residuary. To be certain this purpose was accomplished, he directed that disbursements, be made, not yearly, but in monthly installments, to begin on the 15th day of the second month after his death. It is argued that by use of the words “to pay over the net income and revenue” it must be held that the estate’s income should have first been applied to the payment of all proper charges against the estate, including the inheritance and estate taxes. If so, there would have been no “net income” for distribution. We do not think, however, this language is susceptible of such a construction. The words “net income,” no doubt, had reference to that portion of the income remaining after deducting the ordinary expenses which might be- incurred in its collection. To conclude otherwise would be inconsistent with his expressed intention to care for his family while his estate was in the course of administration. But in addition to this, the language of the will itself negatives such a construction. In his codicil, the testator confers upon his executors, during the three-year period,, wherein the estate is committed to their care, the “same powers and authority, with reference to the control, management and disposition, that I have given unto the trustee in the trust created for the benefit of the children of Paul Brown, Jr.” Clause 20 of Item 21 contains the direction “that all inheritance, estate, transfer or succession taxes assessed * * * against the trust estate herein established for the benefit of the children of my son, Paul Brown, Jr., shall be paid out of the principal of the trust estate.” Thus, it would seem there can be no doubt but what the testator intended to and did direct that inheritance and estate taxes be paid by the executors from the corpus of his estate rather than from income.
We, therefore, have no hesitation in concluding that the executors were without discretion in the matter of making distribution of the estate’s income in the manner in which they did. To have done otherwise would have been in violation of the plain terms of the will.
Having thus concluded, the premise upon which plaintiff’s argument largely rests is destroyed, and the cases relied upon are distinguishable. What is termed by plaintiff as its principal authority is that of Sitterding v. Commissioner of Internal Revenue, 4 Cir., 80 F.2d 939. It is true that the court was there dealing with a situation quite similar to that here. The estate had an income less than estate and federal taxes properly chargeable to it. The court held that under Section 23 of the Revenue Act of 1928, 26 U.S. C.A. § 23, the estate was entitled to deduct such taxes, which left no net income, and, as a result, such distributions as were made to the beneficiaries were from corpus rather than income, and, therefore, not taxable to such beneficiaries. In that case, however, the testator made no provision for the payment of income to the legatees during the course of administration of the estate, but merely provided for them a residuary interest in the same. There was nothing to preclude the executors from applying the income to the payment of taxes, thereby producing a situation by which there was no income for distribution. Under such circumstances, the distributions, as made, were of necessity from the corpus and, therefore, not taxable in the hands of the legatees. As the court said on page 941: “It is not possible, therefore, to say that the distribution to the taxpayer was income and not merely an advance on account of the corpus.” In the instant matter, an opposite situation is presented. The executors acted in conformity with the terms of the will and they had no right to do otherwise. The testator himself labeled the distributions made to his legatees as income and they must be so regarded.
The case of McCahan v. Commissioner, 35 B.T.A. 943, relied on by plaintiff, is distinguishable for the same reason as the Sitterding case, supra. Again, unlike the instant case, there was nothing in the will requiring that the estate’s income, undiminished by payments of estate and inheritance taxes, be paid to the beneficiary. Therefore, the executrix was held justified in using income to pay such taxes and to make distribution to the beneficiary from the corpus of the estate. Such distribution was not income and consequently not taxable as such.
It is interesting to note that suits for refund of taxes paid to' various legatees from the estate of Paul Brown have been filed and heard in two jurisdictions other than the instant suit. Brown v. U. S., D.C., 21 F.Supp. 214, was heard in the Eastern District of Missouri, and Blosser, v. U. S., D.C., 1937 C. C. H., Vol. 4, par. 9370, in the Western District of Missouri. In the Brown case, the claim for refund was denied, and the court in some detail, analyzes and distinguishes a number of cases relied upon here, as well as designating various sections of the Revenue Act held to be applicable. It would serve no useful purpose for us to repeat what was there said. It is sufficient for us to state that we agree, both with the reasoning employed and the conclusion reached. In the Blos-ser case, supra, so far as appears from the memorandum opinion, no consideration was given to the terms of the testator’s will directing that the net income be distributed to the legatees during the course of administration. In fact, it appears that the principal question raised by the Commissioner in that case was whether during the years in question, “the estate * * * was in the process of - administration” within the meaning and intent of Section 162(c) of the Revenue Act of 1928, 26 U.S.C.A. § 162(c). We think the court reached the proper conclusion insofar as it applies to that particular question, which is not urged as a defense in the instant suits.
Plaintiff also makes a contention applicable to only a small portion of the claimed refund to the effect that since the partnership income for 1928 was not actually received by the executors of the estate during that year, that plaintiff’s decedent was not taxable on her part of the same. The court, in Brown v. United States, supra, page 216, decided to the contrary and, we think correctly so. Section 182 of the Revenue Act of 1928, 26 U.S.C.A. § 182, provides: “There shall be included in computing the net income of each partner his distributive share, whether distributed or not, of the net income of the partnership for the taxable year.” Under this language, the estate was properly charged with this distributive share from the partnership for the' year in question, notwithstanding the fact such share was not actually received until the following year. Paragraph (c) of Section 162 of the same Revenue Act provides: “In the case of income received by estates of deceased persons during the period of administration or settlement of the estate, * * * there shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year, which is properly paid or credited during such year to any legatee, heir, or beneficiary, but the amount so allowed as a deduction shall be included in computing the net income of the legatee, heir, or beneficiary.” By virtue of this provision, it is immaterial when such income was actually distributed. It is sufficient, if the allocation be made during the taxable year.
It is our opinion that the District Court reached the proper conclusion in each of the cases and the judgments are, therefore, affirmed.
No opinion for publication.
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_respond2_7_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
LOCAL 342, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW) AFL-CIO, Van E. Warren, Mark Brockette, Gail M. Tribble, Lewis C. Stone, Shirley L. Judkins, Delbert Storie and Perry Carlton, Plaintiffs-Appellees, v. T. R. W., INC., Defendant-Appellant.
No. 18139.
United States Court of Appeals Sixth Circuit.
Oct. 23, 1968.
Owen J. Neighbours, Indianapolis, Ind., for appellant, William ■ E. Plane, Indianapolis, Ind., on the brief, Cadick, Burns, Duck & Neighbours, Indianapolis, Ind., of counsel.
John A. Fillion, Detroit, Mich., for appellees, Stephen I. Schlossberg, Detroit, Mich., George E. Barrett, Nashville, Tenn., Bernard G. Link, Baltimore, Md., on the brief.
Before O’SULLIVAN and PHILLIPS, Circuit Judges, and CECIL, Senior Circuit Judge.
O’SULLIVAN, Circuit Judge.
T. R. W., Inc., a manufacturer with a plant at Lebanon, Tennessee, appeals from a judgment of the District Court for the Middle District of Tennessee enforcing an arbitrator’s award which directed reinstatement of seven of appellant’s employees who had been discharged for striking in violation of a collective bargaining contract. The contract was the product of bargaining between the company and appellee union — Local 342, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) AFL-CIO — and provided in its Article X that:
“Section 1 — During the term of this agreement the Union and its members, individually and collectively, will not permit, cause, or take part in any strike, picketing, slowdown or other curtailment or restricting of production or interference with work in or about the Company’s plant or premises. * * * The parties recognize the right of the Company to take disciplinary action, including discharge, against any employees who participate in a violation of this Section, whether such action is taken against all of the participants or against only selected participants * * (Emphasis supplied.)
On July 8, 1964, in violation of the agreement, more than two hundred of appellant’s employees walked off their jobs, including the seven individual appellees, Van E. Warren, Mark Brockette, Gail M. Tribble, Lewis C. Stone, Shirley L. Judkins, Delbert Storie and Perry Carlton.
The next day, before any of the strikers had returned to work, appellant company sent a telegram to each of the above seven. It read as follows:
“Because of your participation in an action in violation of Section 1, Article 10 of the company-union agreement dated February 15, 1963, you are discharged.”
Grievances were filed, the company refused to withdraw the discharges, and the matter went to arbitration. The arbitrator’s award, entered May 15, 1965, directed the reinstatement of all of the individual appellees- and ordered that two of them be compensated for loss of pay from the date of their discharge, July 9, 1964. It was disclosed during the course of the grievance procedure or at the hearing before the arbitrator that the reason the seven appellees were selected for discharge was the company’s belief that they had been active ringleaders in encouraging other employees to participate in the strike.
The company produced written reports identifying all seven dischargees as activists in the strike. On this subject, the arbitrator’s opinion recites:
“The Arbitrator has examined the entire record carefully and it is his judgment that there is substantial credible evidence to support the finding that grievants Stone, Judkins, Tribble, Storie, and Carlton actively encouraged other employees to participate in the strike. In other words, the record in this case shows sufficient evidence to establish that these five employees were deserving of discipline under the standard that the Company was utilizing and which it was entitled to utilize under Article X, Section 1.”
After his above finding that five of the grievants were leaders of the strike, he exonerated the other two:
“In the opinion of the Arbitrator, however, the record fails to show any substantial basis for concluding that Brockette could be said to have actively encouraged other employees to engage in the strike. In the opinion of the Arbitrator the record is similarly deficient with respect to substantial evidence which would indicate that grievant Warren was guilty of actively encouraging other employees to engage in the strike.”
Upon this finding, these two grievants were awarded back pay as well as reinstatement. It was his view that, notwithstanding that all seven appellees had engaged in the illegal strike, giving the company the right to discharge them, the company had a burden of proving to him that each of the grievants was in fact a leader in encouraging the illegal walkout. Although he found that the first mentioned five grievants had engaged in an illegal strike and were its ringleaders, he ordered all of them reinstated, the five without back pay. He did this upon his assumption that it was within his province to determine whether the company’s exercise of its own contractual rights comported with his own notion of “fundamental fairness.” He stated:
“The Arbitrator has found that there was a sufficient factual basis for the Company to conclude that grievants Tribble, Stone, Judkins, Storie and Carlton were guilty of actively encouraging other employees to participate in the strike. The Arbitrator believes, however, that as to these five grievants the discharge penalty should be set aside because the procedure followed by the Company was lacking in fundamental fairness. The record shows that the employer in this case did not advise any of the grievants or the Union as to the basis for discharging the grievants either prior to discharge or thereafter.
***•»-»*
“The Arbitrator believes that a discharge can be improper because of procedural unfairness and it is his opinion that this is true in the present case. In the absence of compelling circumstances it is not ordinarily proper to discharge an employee without informing him of the charges against him and without affording some opportunity for objective investigation.” (Emphasis supplied.)
The District Judge ordered the award of the arbitrator enforced. We reverse.
We consider that the company’s contract with the union, of which all of the individuals were members, gave it a clear right to do what' it did. The language of this contract was not ambiguous, nor did any of its terms require interpretation by the arbitrator or the courts.
Neither before the arbitrator nor the District Judge, nor in their addresses to this Court, did appellees contend that the appellant company did anything that was not its clear right under the contract. Appellees did not dispute the facts that:
a) There was a strike — a curtailment and restricting of production — an interference with work.
b) The seven dischargees were members of the union.
c) The dischargees all took part in the involved conduct which violated the contract.
Under these circumstances, the company had the right:
a) To take disciplinary action — including discharge — against any employee who participated in the described conduct, and
b) Such action could be taken against all or against only selected participants.
Nothing in the contract made the exercise of these rights subject to ultimate approval of an arbitrator or a court; neither was there a requirement of any preliminaries — prior notice or bilateral investigation. In ordering enforcement of the award, the District Judge said:
“The arbitrator found that while the company did have this explicit power of selective discipline, an inquiry into the reasonable use of this power was not precluded. The Court is of the opinion that the arbitrator’s ruling that the exercise of the power of selective discharge must be reasonable under the circumstances is a fair and logical inference from the agreement. Also, it is a reasonable inference that in the exercise of this power fair procedure must be adhered to.”
The conduct of the arbitrator, thus approved by the District Judge, in reality constituted the addition of terms to a negotiated contract that was neither unclear nor incomplete. The arbitrator held that the company’s way of exercising its contractual rights was lacking in fundamental fairness. He finds this fundamental unfairness in what he says was the company’s failure to tell the employees why they were discharged. He said:
“The Arbitrator believes that a discharge can be improper because of procedural unfairness and it is his opinion that this is true in the present case. In the absence of compelling circumstances it is not ordinarily proper to discharge an employee without informing him of the charges against him and without affording some opportunity for objective investigation.” (Emphasis supplied.)
But, were it necessary, each of the involved employees was told of the charge against him and the reason for his discharge. Each received a telegram advising that:
“Because of your participation in an action in violation of Section 1, Article 10 of the company-union agreement dated February 15, 1963, you are discharged.” (Emphasis supplied.)
The conduct which brought into being the company’s right to discharge any employee was “participation in an action in violation of Section 1, Article 10, of the company-union agreement.” All seven appellees were admittedly guilty of such a violation and were thereby subject to discharge without reference to whether they were or were not activists in promoting or encouraging others to join in an illegal strike. It was not for an arbitrator to add to the contract a provision that the above right to discharge would be lost unless the company had, in the turmoil and crisis of a strike, announced the reasons for the selectivity employed in exercising its rights and later had established that such reasons were, in the view of an arbitrator, sufficient to permit it to exercise the selectivity which was also an unqualified contractual right.
There is nothing in the contract calling for “objective investigation”; neither does the arbitrator’s opinion tell when and how, in the crisis of an illegal walkout, an “objective investigation” was to be had. The contract provides:
“The Arbitrator shall not have the power to add to or subtract from or modify any of the terms of this Agreement or any agreement supplemental hereto.”
It appears to us that the company’s right to selectively discharge participants in an illegal work stoppage was intended to allow the company to deal quickly with such an emergency. The efficacy of its exercise is portrayed by the following factual findings of the arbitrator:
“On July 8, 1964 there was a work stoppage at the Company’s Plant. Two hundred fifteen employees in the bargaining unit clocked out and left the plant at approximately 10 A.M. on that date. On the same date a substantial number of employees who were scheduled to work on the second shift did not do so. On the following day (July 9, 1964) there were some two hundred thirty-six employees who were scheduled to work on the first shift who did not report at the scheduled starting time of 7 A.M. Employees on this shift did begin returning to work at approximately 11:30 A.M. on July 9. At 10:15 A.M. on July 9 the Company, through its Industrial Relations Manager, sent to each of the grievants involved in this case the following notice of discharge by wire.”
Thus, hardly more than an hour after the grievants were discharged and the union notified of such fact, the employees began to return to work. It can be assumed that the contract provision which allowed the selective discharge of some of the participants in a walkout was the product of bargaining and that the company gave some quid pro quo to get it. An arbitrator should not be permitted to nullify it.
We consider that our own decision in District 50, United Mine Workers v. Chris-Craft Corp., 385 F.2d 946 (6th Cir. 1967), supports our position here. The factual differences of that case do not destroy its appositeness to the ease at bar. Some eight employees were chosen for discharge because they engaged in an illegal strike. These eight were apparently selected to be discharged out of a large group of strikers because they were union officials. The company refused to arbitrate the validity of these discharges on the ground that discharge for participation in an illegal strike was the non-arbitrable prerogative of the company. We indicated that a clear provision of a collective bargaining contract should be enforced.
“No provision of the agreement and no other evidence before the Court indicated that the parties contemplated conferring a broad power upon the arbitrator. To the contrary, all of the evidence indicated that the employer bargained for and retained this one form of discipline free from the arbitration procedure.” 385 F.2d at 950.
The Fourth Circuit in Textile Workers Union v. American Thread Co., 291 F.2d 894 (4 Cir., 1961), held that, after an arbitrator had unequivocally found that the discharged employee was in fact guilty of conduct constituting “just cause” for discharge under a collective bargaining agreement, he was not free to then measure the “appropriateness” of the penalty.
“The reservation of a right to either discipline or discharge for cause would be wholly ineffective and meaningless if the employer’s action, pursuant to such right, is subject to review by an arbitrator on the basis of appropriateness. If the reserved right is construed to mean that the employer can take no disciplinary action in excess of a reprimand, except at its own risk and subject to severe penalties in case an arbitrator should later be of the opinion that some milder action is appropriate, the effect would be that the employer’s inherent right which has not been expressly relinquished by contract is no right at all.” 291 F.2d at 899.
We see no reason to further indulge in dissertation or review of the cases which have dealt with the subject now under our consideration. The trilogy, United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1969); and United Steel Workers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), have set down the applicable rules. Enterprise announces the rule controlling this case.
“Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” 363 U.S. at 597, 80 S.Ct. at 1361.
Obeying that rule, we decide that the order of the arbitrator should have been denied enforcement. The judgment of the District Court is reversed, with direction to enter judgment dismissing the complaint.
. This exoneration was the product of the arbitrator weighing the evidence adduced at the hearing before him. The company produced evidence that both Brockette and Warren were activists in encouraging the walkout. They both denied the conduct charged to them. The arbitrator, upon his evaluation of the probative worth of the evidence and his finding as to credibility, absolved them both of actively encouraging the walkout.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
SNYPP v. STATE OF OHIO.
No. 6662.
Circuit Court of Appeals, Sixth Circuit.
March 9, 1934.
D. W. & A. S. Iddings, of Dayton, Ohio, Smith & Smith, of Xenia, Ohio, and Norman L. Weisman, of Dayton, Ohio, for appellant.
M. E. McCallister, Pros. Atty., of Xenia, Ohio, and Harry N. Routzohn, of Dayton, Ohio, for the State of Ohio.
Before HICKS and SIMONS, Circuit Judges, and HAHN, Distriet Judge.
PER CURIAM.
Appellant Snypp was on January 22, 1933, indieted by the Grand Jury of Greene County for violation of the Securities Act of the State of Ohio, known as the Blue Sky Law (Gen. Code Ohio, § 86214-1 et seq.). He entered a plea of not guilty and gave bond for his enlargement. Thereafter he filed an affidavit of prejudice against the local judge, the charges being heard by the Chief Justice of the Supreme Court of Ohio, in accordance with Ohio practice. He dismissed the charges against the judge on the ground that they were not sustained by the evidence. Thereafter, on July 20,1933, appellant filed his petition for removal to the Distriet Court, the petition alleging that it was based upon section 31 of the Judicial Code, formerly Revised Statutes, § 641, now 28 USCA § 74. Upon motion in the Distriet Court to dismiss the petition and to remand to the state court, the Distriet Court granted the motion in both respects. An appeal was taken to this court.
A motion to dismiss was here filed, the grounds thereof being: (a) That no appeal lies from an order of remand, and (b) that there is no constitutional question involved in this cause upon which appellant can base his right of appeal.
As to the first ground of the motion, appellant contends that section 31 of the Judicial Code (28 USCA § 74) is a separate and independent statute, and that 28 USCA § 71 (Jud. Code § 28), which in part provides that there may be “no appeal or writ of error from the decision of the distriet court” upon the remanding of a cause, has no application. However, it has been ruled to the contrary in Cole v. Garland (C. C. A. 7) 107 F. 759. Proceedings in error were dismissed by the Supreme Court for want of jurisdiction. 183 U. S. 693, 22 S. Ct. 933, 46 L. Ed. 393.
Under the settled practice of this court we may, upon this motion, also, notice the second 'ground of the motion to dismiss the appeal, and treat it as a motion to affirm. C. N. Bevan v. Gilson D. Light, as Sheriff of Lucas County, Ohio (C. C. A.) 61 F.(2d) 1019, certiorari denied 287 U. S. 665, 53 S. Ct. 224, 77 L. Ed. 574. In that case we followed the practice of the Supreme Court of the United States, and in referring to that practice we said : “That court has held that when it appears that the question for decision is frivolous or unsubstantial, or that the appeal was obviously prosecuted for delay, the appeal will be dismissed or the judgment affirmed on motion. Blythe v. Hinckley, 180 U. S. 333, 21 S. Ct. 390, 45 L. Ed. 557; Deming v. Carlisle Packing Co., 226 U. S. 102, 33 S. Ct. 80, 57 L. Ed. 140; Wagner Electric Mfg. Co. v. Lyndon, 262 U. S. 226, 43 S. Ct. 589, 67 L. Ed. 961.”
A petition for removal under section 31 of the Judicial Code must fully and precisely state how the removing party is deprived of his equal civil rights. State of Ohio v. Swift & Co. (C. C. A. 6) 270 F. 141, 147. Compare Maryland v. Soper, 270 U. S. 9, 46 S. Ct. 185, 70 L. Ed. 449. Section 31 of the Judicial Code is directed at the action of “judicial tribunals of the state” in disregard of the rights secured to the party aggrieved by the Civil Rights Acts. The petition for removal here alleges that appellant is being deprived of such rights because he cannot obtain justice in any of the state courts in which his ease may be tried on account of prejudicial and local influence. The allegation was probably made having in mind section 13427-1 of the General Code of Ohio (113 Ohio Laws, p. 132), which, in part, provides: “If it appears to the court, by affidavits or evidence in open court, that a fair and impartial trial cannot be had in the county where a cause is pending, such court shall order that the accused be tried in any county of the state. * * * ” If susceptible of proof, this allegation would not constitute a discrimination, by the state courts, affecting the civil rights of the appellant.
To further sustain the petition for removal, appellant argued that he was indieted under a state statute which by its terms violates the' Constitution- of the United States in that it places upon a defendant the duty of proving that the securities sold by him are exempt from the operation of the law. But see Casey v. United States, 276 U. S. 413, 48 S. Ct. 373, 72 L. Ed. 632, and Hall v. Geiger-Jones Co., 242 U. S. 539, 37 S. Ct. 217, 61 L. Ed. 480, L. R, A. 1917E, 514, Ann. Cas. 1917C, 643. No eivil rights being involved, it is not the purpose of section 31 of the Judicial Code to permit the federal courts to determine the constitutionality of state criminal statutes in advance of determination of that question by the courts of the state. Upon state courts equally as upon the federal courts rests the duty and obligation to enforce and protect every right granted and secured by the Constitution of the United States, Ex parte Royall, 117 U. S. 241, 248, 6 S. Ct. 734, 29 L. Ed. 868, and it is settled that comity requires that such questions he decided by the state courts in the first instance. United States ex rel. Kennedy v. Tyler, 269 U. S. 13, 46 S. Ct. 1, 70 L. Ed. 138; Kentucky v. Powers, 291 U. S. 1, 26 S. Ct. 387, 59 L. Ed. 633, 5 Ann. Cas. 692; compare Boynton v. Fox West Coast Theatres Corp. (C. C. A. 19) 69 F.(2d) 851, 854.
As to the allegations of the petition for removal, not specifically referred to in this opinion, it is sufficient to say that they do not relate to any rights secured to appellant by the Civil Rights Acts.
The -order remanding the ease to the court of common pleas of Greene county, Ohio, is affirmed.
In memorandum attached to order and not for publication; no opinion filed.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
SUNKIST GROWERS, INC., et al. v. WINCKLER & SMITH CITRUS PRODUCTS CO. et al.
No. 241.
Argued March 21-22, 1962.
Decided May 28, 1962.
Herman F. Selvin argued the cause for petitioners. With him on the briefs was Ross C. Fisher.
William C. Dixon argued the cause for respondents. With him on the briefs was Holmes Baldridge.
Mr. Justice Clark
delivered the opinion of the Court.
This is a treble damage suit brought under § 4 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 15, charging petitioners, Sunkist Growers, Incorporated, and The Exchange Orange Products Company, with conspiracy to restrain and monopolize interstate trade and commerce in citrus fruits and by-products and with actual monopolization thereof in violation of §§ 1 and 2 of the Sherman Act, 26 Stat. 209, 15 U. S. C. §§ 1, 2, as amended. The petitioners are each agricultural cooperative organizations, Exchange Orange being a wholly owned subsidiary of Sunkist. Petitioners contend the case was submitted under instructions permitting the jury to find an illegal conspiracy among them and Exchange Lemon Products Company, a cooperative processing association owned and operated exclusively by a number of lemon-grower associations all of which are members of Sunkist Growers, Inc. They say that under the exemptions from the antitrust laws granted agricultural associations by § 6 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 17, and § 1 of the Cap-per-Volstead Act, 42 Stat. 388, 7 U. S. C. § 291, Sunkist, Exchange Orange, and Exchange Lemon, being made up of the same growers and associations, cannot be charged with conspiracy among themselves. The trial court overruled this contention, among others, and the jury returned a verdict of $500,000. Judgment for treble this amount and attorney fees, less some minor offsets, was entered. The Court of Appeals, accepting petitioners’ view of the instructions, held that the exemption claimed did not apply here and affirmed the judgment as to liability but reversed as to the amount of damages. 284 F. 2d 1. We granted certiorari limited to the issue of the immunity of interorganizational dealings among the three cooperatives from the conspiracy provisions of the antitrust laws. 368 U. S. 813. We have concluded that the case was submitted to the jury on the theory claimed by petitioners and that this was erroneous. Thus we reverse the judgment.
Sunkist Growers, Inc., has at its base 12,000 growers of citrus fruits in California and Arizona. These growers are organized into local associations which operate packing houses. The associations in turn are grouped into district exchanges, and representatives from these exchanges make up the governing board of Sunkist, a nonstock membership corporation. Sunkist serves the members as an organization for marketing their fresh fruit and fruit products through its field, advertising, sales, and traffic departments. All of its net revenues are distributed to the members.
In 1915 several member associations of Sunkist undertook to develop by-products for lemons in order to create a market for produce not salable as fresh fruit. Because this was a new, untried field the entire cooperative did not participate. Rather a separate cooperative — Exchange Lemon, a nonprofit stock corporation — was formed for this venture by the interested associations. Since that time Exchange Lemon has retained its separate identity although it is made up exclusively of lemon-grower associations which are also members of Sunkist. Its function now is primarily one of processing, and the resultant products are marketed for the owners by Sunkist through its products department, which is jointly managed by directors of Exchange Lemon and Exchange Orange.
One year after the organization of Exchange Lemon a similar association was formed to develop by-products for oranges. This organization, Exchange Orange, was comprised of a number of Sunkist member associations until 1931. At that time the Sunkist directors decided to make the processing facilities of Exchange Orange available to all of its member associations by purchasing it and operating it as a wholly owned subsidiary.
In sum, the individual growers involved each belong to a local grower association. Fruit which is to be sold fresh is packed by the associations and marketed by Sunkist, a nonstock membership corporation comprised of district exchanges to which the associations belong. Most fruit which is to be processed into by-products is handled by Exchange Orange, a subsidiary of Sunkist, or by Exchange Lemon, a separate organization comprised of a number of Sunkist member associations. It is then marketed by the products department of Sunkist which is managed by directors of Exchange Orange and Exchange Lemon.
Competing with the three cooperatives in the California-Arizona area in the business of processing and selling canned orange juice were four independent processors, which were primarily dependent upon Sunkist for their supply of by-product oranges. In 1951 two of these concerns, TreeSweet Products Company and E. A. Silzle Corporation, had process-and-purchase contracts with Exchange Orange. Under its contract TreeSweet agreed to process at cost an undetermined amount of oranges provided by Exchange Orange and to purchase the resultant orange juice at the then current price of Sunkist. The average net price for the oranges under this contract was alleged to have been $25.10 per ton. The contract with Silzle provided that it would process a stated amount of oranges for Exchange Orange and purchase the juice at a stated price less its processing cost alleged to have netted $17.66 per ton. The third producer, Case-Swayne Company, allegedly declined Sunkist’s offer of a similar contract. Respondent Winckler & Smith Citrus Products Company, the final processor, was offered oranges only at the list price of $40 to $44 per ton, depending upon content of soluble solids, and was refused the process- and-purchase arrangements described above.
Respondents brought this suit on the theory that Sunkist and Exchange Orange controlled the supply of byproduct oranges available in the California-Arizona area to independent processors; that they combined and conspired with Exchange Lemon, TreeSweet, and Silzle to restrain and to monopolize interstate trade and commerce in 1951 in the processing and sale of citrus fruit juices, particularly canned orange juice; that they in fact monopolized such trade and commerce; and that the purpose or effect thereof was the elimination of Winckler as a competitor in the sale of such juices. Respondents relied on six specific acts and contracts which allegedly furthered the conspiracy, namely: (1) the processing of oranges at cost by Exchange Lemon for Exchange Orange during 1951; (2) the processing of lemons at cost by Exchange Orange for Exchange Lemon during 1951; (3) the establishment by Sunkist and Exchange Orange of a price to independent processors alleged to be too high to enable purchasers to compete, i. e., the $40-$44 per ton list price; (4) the contract between Exchange Orange and TreeSweet in 1951; (5) the contract between Exchange Orange and Silzle in 1951; (6) the refusal to sign a comparable contract with respondent Winckler.
After a lengthy trial producing a 4,000-page transcript, the case went to the jury under a necessarily complicated charge. As to the parties the jury might find to have participated in an illegal conspiracy, the court gave several instructions. One, given early in the charge, was that:
“a parent corporation and its wholly-owned subsidiary can be guilty of combining or conspiring together to violate the antitrust laws. The defendants Sunkist Growers, Inc., and its wholly-owned subsidiary Exchange Orange Products Company, can accordingly combine or conspire together or with others to violate Sections 1 and 2 of the Sherman Act as charged in the first and second causes of action, subject to other instructions concerning the Capper-Volstead Act, and Section 6 of the Clayton Act, and the exemptions contained therein.”
The instructions on the Clayton and Capper-Volstead Acts merely stated that the cooperatives could lawfully have a monopoly of the fruit and products in which they dealt. Later references to the alleged conspiracy often mentioned only petitioners and the two independent processors, e. g., “If you find that either or both of the defendants [Sunkist and Exchange Orange, petitioners here] combined with TreeSweet or Silzle to eliminate the competition of the plaintiff . . . .” However, the court’s concluding instructions on the subject could well have been taken by the jury as permitting them to find an illegal conspiracy solely among the three cooperatives:
“Unless you find, therefore, from the preponderance of the evidence, that Sunkist or Exchange Orange or either of them, combined or conspired with either TreeSweet, or Silzle, or ELP [Exchange Lemon Products], and in 1951 did one or more of the specific acts charged ....
. . Unless you find from the preponderance of the evidence that defendants Sunkist and Exchange Orange, or either of them, and one or more of the alleged co-conspirators [one of which was Exchange Lemon], combined and conspired, and pursuant to such combination or conspiracy ....
“Those are summary instructions whieh sort of sum up what is charged and what the plaintiff must prove.”
And in a final addendum after consultation with counsel the court instructed that:
“I also am told that I spoke about how the defendants had conspired on one occasion. The charge is not that the defendants conspired. The charge is that the defendants and co-conspirators conspired.
“However, as a .matter of fact, you may find that nobody conspired, or you may pick out and decide that some number less than the total conspired.”
On the question now before us, the Court of Appeals held that any objection to at least one of the cónspiracy instructions was waived; that in any event different agricultural cooperatives combining together are not entitled to claim a total immunity for acts which they might do unilaterally and individually; and that the common ownership of Sunkist, Exchange Orange, and Exchange Lemon did not prevent the finding of an illegal conspiracy among them.
We believe the instructions quite plainly left it open for the jury to base their verdict upon a finding of a conspiracy among petitioners and Exchange Lemon. At the outset the court instructed that a conspiracy could be found between Sunkist and its wholly owned subsidiary Exchange Orange. Thereafter the charge advised the jury that a finding of conspiracy between “Sunkist or Exchange Orange or either of them . . . [and] either TreeSweet, or Silzle, or ELP” was sufficient basis for a judgment against petitioners. From this it is entirely probable that the jury’s verdict against both petitioners was based on their finding of a conspiracy among Sunkist, Exchange Orange, and Exchange Lemon. There is no question that Exchange Lemon was identified in the complaint and throughout the trial as an alleged co-conspirator. In no fewer than five instances did the trial court refer to the alleged conspiracy as being among petitioners and the “co-conspirators” or petitioners and Exchange Lemon, TreeSweet, or Silzle. The final summarization on conspiracy was in terms of finding that petitioners combined or conspired with either TreeSweet or Silzle or Exchange Lemon, and the addendum instructions emphasized that the jury could find either or both petitioners had illegally conspired with any one of the alleged co-conspirators. It is true that in some instances the court’s conspiracy instructions mentioned only TreeSweet and Silzle as co-conspirators. Conjecture as to the reasons for this would not be fruitful. For it is clear that the court never limited the jury to a consideration of those parties as the sole co-conspirators. And other instructions, including the summarization, allowed the jury to base their verdict upon a finding of an illegal conspiracy solely among Sunkist, Exchange Orange, and Exchange Lemon.
It is suggested by respondents and the court below that petitioners waived their objection to these instructions. This is based on petitioners’ acquiescence in the additional instructions, including references to the conspiracy, given the jury after the general charge. But petitioners’ actions here must be viewed in context. Prior to the general charge, conferences of counsel and the trial court were held to discuss the instructions. At each point counsel for petitioners objected to instructions which suggested that the three cooperatives might be found to have illegally conspired among themselves and requested instructions that would have limited a finding of an unlawful conspiracy in this case to one among petitioners and TreeSweet or Silzle. The trial court consistently ruled adversely to petitioners on this point. After the charge was delivered, counsel were told that all prior objections would be preserved and asked if they had any additional objections. In light of this assurance and petitioners’ prior objections and requests, we believe the acquiescence in the added instructions could not be considered a waiver.
We are squarely presented, then, with the question of whether Sunkist, Exchange Orange, and Exchange Lemon — the three legal entities formed by these 12,000 growers — can be considered independent parties for the purposes of the conspiracy provisions of §§ 1 and 2 of the Sherman Act. We conclude not. Section 6 of the Clayton Act provides, inter alia, that agricultural organizations instituted for the purposes of mutual help shall not be held or construed to be illegal combinations or conspiracies in restraint of trade under the antitrust laws. The Capper-Volstead Act sets out this immunity in greater specificity:
“That persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers may act together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes . ...”
There can be no doubt that under these statutes the 12,000 California-Arizona citrus growers ultimately involved could join together into one organization for the collective processing and marketing of their fruit and fruit products without the business decisions of their officers being held combinations or conspiracies. The language of the Capper-Volstead Act is specific in permitting concerted efforts by farmers in the processing, preparing for market, and marketing of their products. And the legislative history of the Act reveals several references to the Sunkist organization — then called the California Fruit Growers Exchange and numbering 11,000 members — including a suggestion by Senator Capper that this was the type of cooperative that would find “definite legalization” under the legislation. Although we cannot draw from these references a knowing approval of the tripartite legal organization of the 11,000 growers, they do indicate that a cooperative of such size and general activities was contemplated by the Act.
Instead of a single cooperative, these growers through local associations first formed one area-wide organization (Sunkist) for marketing purposes. When it was decided to perform research and processing on a joint basis, separate organizations were formed by the interested associations for reasons outlined above. At a later date one of these (Exchange Orange) was acquired by the Sunkist organization and is presently held as a subsidiary. The other (Exchange Lemon) is still owned by the lemon-grower associations, all of whom are also member associations of Sunkist. With due respect to the contrary opinions of the Court of Appeals and District Court, we feel that the 12,000 growers here involved are in practical effect and in the contemplation of the statutes one “organization” or “association” even though they have formally organized themselves into three separate legal entities. To hold otherwise would be to impose'grave legal consequences upon organizational distinctions that are of de minimis meaning and effect to these growers who have banded together for processing and marketing purposes within the purview of the Clayton and Capper-Volstead Acts. There is no indication that the use of separate corporations had economic significance in itself or that outsiders considered and dealt with the three entities as independent organizations. That the packing is done by local associations, the advertising, sales, and traffic by divisions of the area association, and the processing by separate organizations does not in our opinion preclude these growers from being considered one organization or association for purposes of the Clayton and Capper-Volstead Acts.
Since we hold erroneous one theory of liability upon which the general verdict may have rested — a conspiracy among petitioners and Exchange Lemon — it is unnecessary for us to explore the legality of the other theories. As was stated of a general verdict in Maryland v. Baldwin, 112 U. S. 490, 493 (1884), “[I]ts generality prevents us from perceiving upon which plea they found. If, therefore, upon any one issue error was committed, either in the admission of evidence, or in the charge of the court, the verdict cannot be upheld . . . Suffice it to say that our decision in no way detracts from earlier cases holding agricultural cooperatives liable for conspiracies with outside groups, United States v. Borden Co., 308 U. S. 188 (1939), and for monopolization, Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458 (1960).
Reversed and remanded.
Mr. Justice Frankfurter took no part in the decision of this case.
Mr. Justice White took no part in the consideration or decision of this case.
These include juices, concentrates, oil, pectin, pharmaceuticals, and cattle feed.
Some by-product fruit is sold to or processed by independent processors.
Sunkist also sold by-product oranges to additional companies for processing into by-products other than canned orange juice.
The soluble solids content of the oranges processed by TreeSweet under this contract averaged 131.6 pounds per ton.
The soluble solids content of these oranges averaged 120 pounds per ton.
It could be argued that the instructions also permitted the jury to find an illegal conspiracy solely between petitioners. Our holding renders unnecessary an evaluation of this interpretation of the charge.
“Sec. 6. That the labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.”
The Act has certain organizational requisites which are not in issue here.
61 Cong. Rec. 1036 (1921) (remarks of Representative Black); 62 Cong. Rec. 2052 (1922) (Senator Kellogg); 62 Cong. Rec. 2061 (1922) (Senator Capper); 62 Cong. Rec. 2277 (1922) (Senator Walsh).
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_trialpro
|
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 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".
SOUTHERN INDIANA BROADCASTING, LTD., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Posey County Broadcasting Corporation, Intervenor.
No. 90-1492.
United States Court of Appeals, District of Columbia Circuit.
Argued May 16, 1991.
Decided June 21, 1991.
James A. Kline, IV, with whom Donald J. Evans, Washington, D.C., was on the brief for appellant.
Roberta L. Cook, Counsel, F.C.C., with whom Robert L. Pettit, Gen. Counsel, and Donald M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on the brief for appellee.
Harry C. Martin and Troy F. Tanner, Washington, D.C., entered appearances for intervenor.
Before EDWARDS, BUCKLEY, and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge:
Southern Indiana Broadcasting seeks review of a Federal Communications Commission order granting Posey County Broadcasting Company authority to construct a new FM broadcast station. Southern challenges the AU’s refusal to admit certain deposition testimony and the Commission’s decision that if the AU erred in this respect, the error was harmless. Southern also objects to the AU’s refusal to consider whether Posey violated Commission rules prohibiting ex parte communications with decision-making staff.
When more than one person seeks a construction permit for a new FM station, the Commission chooses among the applicants in light of its goals of providing “the best practicable service to the public” and maximizing “diffusion of control of the media of mass communications.” See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393, 394 (1965). The Commission considers it important if an applicant will participate actively in the daily management of the proposed radio station. The Commission will enhance the credit given for such integration of ownership with management if the applicant possesses certain other characteristics, such as broadcast experience, civic participation or minority status. Policy Statement, 1 F.C. C.2d at 396. The Commission also may enhance the credit if the applicant is the licensee of a “daytime-only AM station,” WBEN, Inc. v. United States, 396 F.2d 601, 605-06 (2d Cir.), cert. denied, 393 U.S. 914, 89 S.Ct. 238, 21 L.Ed.2d 200 (1968), provided the applicant has spent more than 20 hours each week for the past three years participating in the daily management of the AM station and satisfies four other criteria not relevant here. See National Black Media Coalition v. FCC, 822 F.2d 277, 279-80 (2d Cir.1987).
Much of the dispute in this case centers on the AU’s exclusion of evidence relating to whether Posey should receive enhanced credit for owning and managing AM station WPCO in Mount Vernon. Ann M. Nussel, who owns Posey with her husband, testified during the comparative hearing that she had participated in the day-to-day management of WPCO. To impeach this testimony, Southern sought to introduce into evidence the deposition of Richard Grogg, station manager at WPCO. The ALJ sustained Posey’s hearsay objection to the deposition on the ground that Grogg was not going to testify and therefore would not be available for cross-examination by Posey.
Southern argues that the Grogg deposition was admissible under 47 C.F.R. § 1.321(d)(2). That subsection, when read in conjunction with 47 C.F.R. § 1.321(b), generally tracks the language of Rule 32(a)(2), Fed.R.Civ.P. Rule 32(a)(2) states that at trial, a deposition “so far as admissible under the rules of evidence applied as though the witness were then present and testifying,” may be used against a party if that party was present at the taking of the deposition or had reasonable notice of it. The quoted language represents an exception to the hearsay rule; it means that a party cannot properly object to admission of a deposition on the ground that the deponent is absent and that his out-of-court statement is being introduced. 8 C. Wright & A. Miller, Federal Practice and Procedure § 2143, at 453 (1970). Southern may be correct that section 1.321(d)(2) has the same meaning as Rule 32(a)(2), but the Commission did not resolve that issue. It assumed that section 1.321(d)(2) would have rendered Grogg’s deposition admissible and that Southern had properly relied on this ground although it did not mention the section to the AU (cf. United States v. Peak, 856 F.2d 825, 832-33 (7th Cir.), cert. denied, 488 U.S. 969, 109 S.Ct. 499, 102 L.Ed.2d 535 (1988)). We shall make the same assumptions, which brings us to Southern’s argument against the Commission’s determination that the error, if there was one, was harmless.
On this score Southern makes the rather feeble claim that the deposition was not formally part of the record for decision, that it did not anticipate the Commission’s looking at the deposition (which was part of the official correspondence file), and that the Commission should not have done so. Southern does not say how the Commission could have decided whether the deposition’s exclusion affected the outcome without reviewing the deposition itself. Aside from that, the Commission never passed on the argument Southern makes in this court. Southern could have, but did not, raise the argument in a petition for reconsideration. Yet when a party seeking judicial review “relies on questions of fact or law upon which the Commission ... has been afforded no opportunity to pass, that party must file a petition for reconsideration as “a condition precedent to judicial review.” 47 U.S.C. § 405(a). Although we have treated this as an “exhaustion” requirement, rather than a jurisdictional prerequisite, and have allowed exceptions, Action for Children’s Television v. FCC, 564 F.2d 458, 469 (D.C.Cir.1977), there is no reason to do so here. Had Southern raised its objection on reconsideration, the Commission could have held that the deposition was part of the record since it was in the official correspondence file (47 C.F.R. § 3.318(f)). Cf. National Ass’n for Better Broadcasting v. FCC, 830 F.2d 270, 274 (D.C.Cir.1987). Or it could have responded to Southern’s argument by supplementing the formal record with the deposition, as Southern had asked the AU to do. See 47 C.F.R. § 1.203. In either event, on a petition for reconsideration the Commission might have satisfied Southern’s problem; at the least, the Commission would have had an opportúnity to respond. 830 F.2d at 274 & n. 30. Southern’s failure to comply with 47 U.S.C. § 405(a) therefore forecloses judicial review of this question of law.
Southern’s remaining claim is that the AU should have determined whether Po-sey improperly initiated ex parte communications with the Commission, or solicited and encouraged others to do so on its behalf (see 47 C.F.R. §§ 1.1202, 1.1208 & 1.1210). Southern did not assert this claim before the Commission and it is therefore not properly before us for review. Rogers Radio Communications Services v. FCC, 751 F.2d 408, 413 n. 14 (D.C.Cir.1985).
The petition for review therefore is denied.
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:
|
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.
Virginia L. MUSI and Genaro Musi v. Joseph DeSARRO and Jack Boyd. Joseph DeSarro, Appellant.
No. 15925.
United States Court of Appeals Third Circuit.
Argued Nov. 4, 1966.
Decided Dec. 19, 1966.
George M. Weis, Pittsburgh, Pa. (Weis & Weis, Pittsburgh, Pa., on the brief), for appellant.
Herman C. Kimpel, Pittsburgh, Pa., (Dickie, McCamey & Chilcote, Pittsburgh, Pa., on the brief), for appellees.
Before GANEY, SMITH and FREEDMAN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
The sole question in this Pennsylvania diversity action is whether Boyd, the driver of appellant’s tractor trailer, was guilty of contributory negligence as a matter of law.
The wife appellee and her husband brought suit for personal injuries and property damage against appellant and Boyd, his driver. Appellant asserted a counterclaim against appellees for damage to his tractor trailer and cargo. A jury trial resulted in a verdict against appellees on their claim and in favor of appellant on his counterclaim. The district court subsequently entered judgment N.O.V. for the appellees on the counterclaim and this appeal followed.
The accident occurred at 2:30 A.M. at a right angle intersection in Sewickley, Pennsylvania. The negligence of the wife, who was the driver of appellees’ passenger car, is conceded, as indeed it had to be. She had driven across the intersection in the face of a flashing red signal, without stopping. Boyd, who was on his way to Pittsburgh to deliver a cargo of cattle, testified that as he approached the intersection he noticed that the traffic signal facing him was flashing “caution or amber”. Nevertheless, he went into the intersection and did not reduce his speed or look to his right or left. He testified that when he first observed appellees’ car, he saw it out of the corner of his eye. It was then too late for him to apply his brakes to avoid the collision, because the car was only fifteen feet away from him.
These facts make it clear that appellant’s driver was guilty of contributory negligence as a matter of law and that the court below therefore properly entered judgment N.O.V. against appellant on his counterclaim. The Pennsylvania Supreme Court has laid down time and again the rule that an operator of a motor vehicle who does not look for moving traffic on an intersecting street as he approaches the intersection is guilty of negligence as a matter of law, even though he proceeds with the traffic light in his favor. See Moore v. Smith, 343 F.2d 206 (3 Cir. 1965), collecting the Pennsylvania cases. It has therefore consistently held that contributory negligence is established as a matter of law if the evidence demonstrates that a party entered an intersection without looking to the side; this duty continues, albeit to a lesser degree, even if he has a green or flashing yellow light in his favor. Smith v. United News Co., 413 Pa. 243, 196 A.2d 302 (1964), green light; Lewis v. Quinn, 376 Pa. 109, 101 A.2d 382 (1954), green light; Allega v. Eastern Motor Express Co., Inc., 378 Pa. 1, 105 A.2d 360 (1954), flashing yellow light.
Since there was no conflict in the testimony of appellant’s driver that he did not look to his right before entering the intersection, and therefore did not observe the appellees’ automobile, which was coming toward him, his contributory negligence was established as a matter of law. This bars appellant’s counterclaim, for Pennsylvania maintains in its full rigor the rule that one cannot recover damage “if his negligence contributed in any degree, however slight, to the injury.” Crane v. Neal, 389 Pa. 329, 333, 132 A.2d 675, 677 (1957). We have recognized this principle in two recent cases. Wilson v. American Chain & Cable Co. Inc., 364 F.2d 558, 562 (3 Cir. 1966); Rodriguez v. Brunswick Corp., 364 F.2d 282, 285 (3 Cir. 1966).
The judgment of the district court will be affirmed.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
UNITED STATES v. BERTELSEN & PETERSEN ENGINEERING CO.
No. 3243.
Circuit Court of Appeals, First Circuit.
July 13, 1938.
For former opinion, see 95 F.2d 867.
Loring W. Post, Sp. Asst, to Atty. Gen. (James W. Morris, Asst. Atty. Gen., Sewall Key, J. Louis Monarch, and F. A. Michels, Sp. Assts. to Atty. Gen., and Francis J. W. Ford, U. S. Atty., and Arthur L. Murray, Sp. Asst, to U. S. Atty., both of Boston, Mass., on the brief), for appellant.
O. Walker Taylor and Ray Henry, both of Boston, Mass., for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
This is a petition for a rehearing in the above entitled cause. The case was heard a second time by this court on appeal from the District Court of Massachusetts, and the judgment of the District Court was affirmed.
The issues raised on this appeal by the assignments of error were whether a deficiency assessment of $34,555.68 made by the Commissioner of Internal Revenue for the year 1918 was made within the statutory period of limitation, as extended by certain waivers filed by the taxpayer. The government also for the first time raised the question in its assignments of error as to whether the District Court had jurisdiction of the cause, relying on Sec. 24 (5, 20) of the Judicial Code as amended, 28 U.S.C.A. § 41 (5,20).
This court held that a fifth waiver filed in December, 1925, which purported to extend the time for the assessment of the 1918 tax to December 31, 1926, was ineffective, since it was not assented to by the Commissioner in writing, and that the assessment of the deficiency tax for 1918 on July 27, 1926, was therefore void.
The petition for rehearing was granted on the sole question of whether the District Court had jurisdiction to hear and decide the case.
Some confusion has arisen in the consideration of the case as to whether the taxpayer’s petition was grounded on the Commissioner’s certificate of overassessment in 1917 as an account stated, or on a balance due on an allowed claim. In either case it is urged by the government that the Court of Claims has sole jurisdiction of the cause. Since this is a petition for rehearing, the case is to be heard anew on the question to which the rehearing is limited. If counsel for plaintiff in their brief, or this Court in its opinion, used language which may be construed as indicating that the taxpayer’s petition was based solely on the Commissioner’s certificate of overpayment of the 1917 tax, either as an account stated or as an allowed claim, we think, on rehearing on the question of the jurisdiction of the District Court to hear and determine the case, that the facts on which jurisdiction is based are opened for further consideration.
The certificate of overassessment issued by the Commissioner on July 27, 1926, disclosed an overpayment by the taxpayer of the 1917 tax of $91,570.34, of which the Commissioner ordered refunded to the taxpayer approximately $55,000, and on July 27, 1926, credited $34,555.68 to a deficiency tax for 1918.
It cannot be said that the certificate of overassessment constituted an account stated between the government and the taxpayer, since the taxpayer refused to assent to the application of any part of the overpayment to a deficiency tax for 1918. To constitute an account stated there must be an agreement as to liability and the amount due. Goodrich, Adm’r, v. Coffin, 83 Me. 324, 22 A. 217. That the taxpayer’s petition was not based on an allowance of an overpayment for 1917, and an implied promise by the government to refund, is equally clear, since the taxpayer refused to assent to the application of $34,555.68 to' a -deficiency tax of 1918. The application by the Commissioner on July 27, 1926, of a part of the overpayment for 1917 to a deficiency tax for 1918, against the protest of the taxpayer, constituted a disallowance of so much of the petitioner’s' original claim for refund.
On November 25, 1927, the taxpayer wrote the Commissioner that, inasmuch as its original claim for refund for 1917 as to the part now sued for had been rejected within two years, it was filing a refund claim for that part of the 1917 overpayment erroneously applied to a deficiency tax for 1918 as a protective measure; and on November 28, 1927, the taxpayer renewed its claim for a refund of $34,555.68 as an overpayment of its 1917 tax by filing with the Commissioner of Internal Revenue a specific claim for the amount under Sec. 3226 R.S. as amended by Sec. 1113 of the Revenue Act of 1926, 44 Stat. 116, to which claim the suit of the taxpayer relates, the receipt of which claim was acknowledged by the Commissioner.
On February 6, 1928, the Commissioner of Internal Revenue notified the taxpayer by letter that its claim of November 28, 1927, had been examined and would be rejected, which rejection would appear on the next schedule approved by the Commissioner.
The chairman of the Special Advisory Committee of the Bureau of Internal Revenue in a memorandum furnished the taxpayer stated relative to its alternative claims for 1917 and 1918 filed November 28, 1927, that: “The claims were considered on 'the merits and in a Bureau letter dated February 6, 1928, they were proposed for rejection.” They were officially rejected on February 28, 1928.
Within two years from the final disallowance of said claims on February 28, 1928, the taxpayer on September 19, 1929, filed a petition in the District Court for the District of Massachusetts to recover the sum of $34,555.68 with interest, which it alleged had been erroneously disallowed.
In the case of Jones v. United States, 5 F.Supp. 146, 152, the Court of Claims held:
“That a reconsideration of a refund claim on the merits constitutes a reopening of the claim is no longer open to doubt. Mobile Drug Co. v. United States (D.C.) 39 F.(2d) 940, and McKesson & Robbins, Inc., v. Edwards (C.C.A.) 57 F.(2d) 147. These cases announce the rule that when the Commissioner, upon application made by a taxpayer within the time in which suit could be instituted on a disallowed claim, enters into a reconsideration of the merits of the claim and later makes a decision thereon rejecting the claim, or adheres to his former decision rejecting it, his decision for the purpose of the statute of limitations is in abeyance until he has reached and announced his final decision, and the taxpayer, under section 3226 of the Revised Statutes, as amended, 26 U.S. C.A. Sec. 156 [now 26 U.S.C.A. §§ 1672-1673], has two years thereafter in which to institute suit. * * * There must be an actual reconsideration of the case, and the final decision must be upon the merits of the claim. Ford Motor Co. v. United States (Ct.Cl.) 3 F.Supp. 423; Hickman v. United States (D.C.) 47 F.(2d) 328. We think this case' clearly illustrates what constitutes the reconsideration of a claim for refund. It meets in every respect the requirement that the claim must be reconsidered and decided upon its merits.”
In the case of Southwestern Oil & Gas Company v. United States, D.C., 29 F.2d 404, 406, certiorari denied 280 U.S. 601, 50 S.Ct. 82, 74 L.Ed. 646, the Court said:
“The plaintiff * * * further contends that the date of the Commissioner’s final rejection of its claim was not April 28, 1925, but August 31, 1927, as the Commissioner, pursuant to plaintiff’s request made prior to the expiration of two years following the original rejection, had reopened the judgment and reconsidered the claim. We find the last of these contentions to be sustained by the findings of fact, and that the claim was actually reopened and reconsidered, and finally decided on August 31, 1927, and consequently plaintiff’s action is not barred by section 3226, R.S., as re-enacted by section 1113 of the Revenue,Act of 1926, and section 281 (a) and (b) of the Revenue Act of 1924 * $ *»
In Pacific Mills v. Nichols, 1 Cir., 72 F.2d 103, 107, the Court said:
“In the present case, even if the Commissioner should be held to have decided every claim under the taxpayer’s original petition, on March 26, 1927, when the second claim was filed, two years had not elapsed since the rejection of the first claim; it was still open to the plaintiff to sue on the denial of the first claim and to the Commissioner to reconsider his decision on the first claim and permit it to be amended and reheard.”
Also see Pratt & Whitney Co. v. United States, Ct.Cl., 6 F.Supp. 574; United States v. Memphis Cotton Oil Co., 288 U.S. 62, 66, 53 S.Ct. 278, 279, 77 L.Ed. 619.
The government having admitted all the jurisdictional facts except those authorizing the District Court to hear such a case, the facts appearing in the record demonstrate that the suit was one which could have been brought against a Collector, if living, but who is now dead or out of office.
We think the contention of the taxpayer must be sustained, viz: that the filing of the second claim for refund on November 28, 1927, and its consideration on its merits was a reopening of the original claim of refund which had been timely filed under Sec. 3226 R.'S. (amended by Sec. 1113 of the 1926 Revenue Act, 44 Stat. 116); Jones v. United States, supra, page 152; Southwestern Oil & Gas Company v. United States, supra, page 406; that the Commissioner accepted the claim as such without any objection as to its timeliness or form and considered it on its merits and officially denied it on February 28, 1928, and the suit of the taxpayer was filed within two years, or on September 19, 1929.
The case of Lowe Bros. Co. v. United States, 6 Cir., 92 F.2d 905, affirmed by the Supreme Court on May 16, 1938, 58 S.Ct. 896, 82 L.Ed.-, does not militate against the taxpayer’s right of recovery in this case, since 'the tax for the year in question in that case was not collected by a collector who was dead or out of office, as the 1917 tax had been in this case, but was in effect collected by the Commissioner of Internal Revenue by applying an overpayment as a credit on taxes for a prior year, which the Commissioner attempted to do in this case for an alleged deficiency tax for 1918.
Upon a reconsideration of the facts and the briefs on rehearing, we think this action was brought to recover that part of a claim for refund of the 1917 overpayment which had been disallowed by improperly applying it to an invalid assessment of a deficiency tax for 1918.
On rehearing the judgment of the District Court will stand affirmed.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Alfred AVINS, Appellant, v. RUTGERS, the STATE UNIVERSITY OF NEW JERSEY.
No. 16480.
United States Court of Appeals Third Circuit.
Argued Oct. 2, 1967.
Decided Nov. 2, 1967.
Certiorari Denied Jan. 29, 1968.
See 88 S.Ct. 855.
Alfred Avins, pro se.
John G. Graham, Newark, N. J., for appellee.
Before STALEY, Chief Judge, and MARIS and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
MARIS, Circuit Judge.
The plaintiff, Alfred Avins, brought suit in the District Court for the District of New Jersey against the defendant, Rutgers, The State University of New Jersey, for declaratory and injunctive relief. The plaintiff alleged that he had submitted to the editors of the Rutgers Law Review for publication in the Review an article which reviewed the legislative history of the Civil Rights Act of 1875 as it pertained to school desegration and which concluded that, in the light shed by the Congressional debates, the United States Supreme Court had erred in Brown v. Board of Education, 1954, 347 U.S. 483, 489, 74 S.Ct. 686, 689, 98 L.Ed. 873, in holding that “although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive.” The articles editor of the Review had rejected the article, stating in his letter of rejection “that approaching the problem from the point of view of legislative history alone is insufficient.” The plaintiff asserted that the editors of the Law Review had adopted a discriminatory policy of accepting only articles reflecting a “liberal” jurisprudential outlook in constitutional law, an outlook which, he said, rejects the primacy of legislative history and the original intent of the framers of a constitutional provision. The plaintiff stated that his article represented the “conservative” approach to constitutional law and he contended that its rejection, which he said was solely because of its conservative tenor, violated his constitutional right to freedom of speech. Both the plaintiff and the defendant moved for summary judgment. After hearing, the trial judge, in an oral opinion, stated, inter alia, that he had “serious doubt as to whether the right of freedom of speech embraces a privilege to use a law school review publication as a medium. Freedom of speech is guaranteed by the Constitution, but the right to have others listen is not guaranteed, nor is anyone obligated to read articles that an author is able to publish. It could not be contended reasonably that the Editorial Board of Rutgers Law Review must accept for publication every treatise on law which is submitted to it. There must necessarily be a broad area for the exercise of discretion.” The judge concluded that the plaintiff had not shown that he had been deprived of a federally protected right. Summary judgment was accordingly entered for the defendant and this appeal by the plaintiff followed.
The plaintiff’s basic contention on this appeal is that a law review published by a state-supported university, such as the defendant, is a public instrumentality in the columns of which all must be allowed to present their ideas, the editors being without discretion to reject an article because in their judgment its nature or ideological approach is not suitable for publication. In considering this contention it must be borne in mind that the validity of a restraint on speech in each case depends on the particular circumstances. Speiser v. Randall, 1958, 357 U.S. 513, 521, 78 S.Ct. 1332, 2 L.Ed, 2d 1460. It is essential, therefore, to scrutinize the procedure by which it is claimed that Rutgers, as an instrumentality of the State of New Jersey, has restrained that freedom. For “Differences in circumstances beget appropriate differences in law.” Whitney v. State Tax Commission, 1940, 309 U.S. 530, 542, 60 S.Ct. 635, 640, 84 L.Ed. 909. As Justice Black remarked in his concurring opinion in Cox v. State of Louisiana, 1965, 379 U.S. 559, 578, 85 S.Ct. 476, 468, 13 L.Ed. 2d 487: “The First and Fourteenth Amendments, I think, take away from government, state and federal, all power to restrict freedom of speech, press, and assembly, where people have a right to be for such purposes.”
Our inquiry, therefore, is whether in the setting of this case the refusal of the editors of the Rutgers Law Review to permit the review to be the medium for the expression of the plaintiff’s ideas abridged his right of free speech. It appears that the publication is part of the educational program of the Law School of Rutgers University for its law students, that the editorial work is done by law students under general faculty guidance, and that the material published consists of “lead” articles contributed by outside authors, in addition to students’ writing. The plaintiff does not assert that the operation of the Rutgers Law Review, or the work of the student editors, deviates in any way from that which is customarily followed in the publication of similar law reviews by non-public law schools. Traditionally, a law review is student edited and the student editors determine the policies and decide which of the submitted articles and other material are to be published. In this regard, the trial judge stated:
“ * * * the Editorial Board must be selective in what it publishes, and a selective process requires the exercise of opinion as to what particular subject matter of the law will at a given time be of educational value, not only to the student body, but also to the subscribers.
“The plaintiff in this case seems to feel that the subject matter of his article is of paramount significance and should be published to the exclusion of other articles that were apparently selected to fill the space that this article would have taken in the Law Review.
“In this respect he seeks to intrude his opinion upon that of the Editorial Board * * * ”
The trial judge found as a fact “that the reasons for rejection as stated by Mr. Calligaro [the student articles editor] were valid and that this particular article was one which it would not be unreasonable for any editorial review board of a Law Review to reject.”
We agree. The right to freedom of speech does not open every avenue to one who desires to use a particular outlet for expression. On the contrary, each particular avenue for expression presents its own peculiar problems. Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 502-503, 72 S.Ct. 777, 96 L.Ed. 1098. Nor does freedom of speech comprehend the right to speak on any subject at any time. American Communications Assn. v. Douds, 1950, 339 U.S. 382, 394, 70 S.Ct. 674, 94 L.Ed. 925. As this court said in McIntire v. Wm. Penn Broadcasting Co. of Philadelphia, 1945, 151 F.2d 597, 600-601, cert. den. 327 U. S. 779, 66 S.Ct. 530, 90 L.Ed. 1007, “True, if a man is to speak or preach he must have some place from which to do it. This does not mean, however, that he may seize a particular radio station for his forum.” See, also, Earle C. Anthony, Inc. v. Morrison, D.C.Cal.1948, 83 F.Supp. 494, aff. 9 Cir. 1949, 173 F.2d 897, cert. den. 338 U.S. 819, 70 S.Ct. 62, 94 L.Ed. 496; Tribune Review Publishing Company v. Thomas, 3 Cir. 1958, 254 F.2d 883.
Thus, one who claims that his constitutional right to freedom of speech has been abridged must show that he has a right to use the particular medium through which he seeks to speak. This the plaintiff has wholly failed to do. He says that he has published articles in other law reviews and will sooner or later be able to publish in a law review the article here involved. This is doubtless true. Also, no one doubts that he may freely at his own expense print his article and distribute it to all who wish to read it. However, he does not have the right, constitutional or otherwise, to commandeer the press and columns of the Rutgers Law Review for the publication of his article, at the expense of the subscribers to the Review and the New Jersey taxpayers, to the exclusion of other articles deemed by the editors to be more suitable for publication. On the contrary, the acceptance or rejection of articles submitted for publication in a law school law review necessarily involves the exercise of editorial judgment and this is in no wise lessened by the fact that the law review is supported, at least in part by the State.
The plaintiff’s contention that the student editors of the Rutgers Law Review have been so indoctrinated in a liberal ideology by the faculty of the law school as to be unable to evaluate his article objectively is so frivolous as to require no discussion.
The judgment of the district court will be affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES v. FOX.
No. 189.
Circuit Court of Appeals, Second Circuit.
Feb. 24, 1942.
Samuel W. Altman, of New York City, for appellant.
John C. Hilly, of New York City, for ap-pellee.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
PER CURIAM.
The accused, Fox,.was convicted of possessing with guilty knowledge a carton of silk stolen while it was “part of * * * an interstate * * * shipment.” § 409, Title 18 U.S.C.A. He raises only one point; i. e. that the silk when stolen had not yet begun to move in interstate commerce within the meaning of the statute. The facts proved were as follows: The silk was in one of a number of cartons which a New York merchant had packed for shipment to another merchant in California. The shipper’s servant made out a through bill of lading for them and a “shipping order” and delivered both along with the cartons — seventeen in all — to the servant of a truckman, doing business in the city who picked them up in a hand-car and took them to the truckman’s place of business. Two other servants of the truckman then put them on a motor truck and — with the two documents mentioned also in their possession — drove to the freight yard of the Erie Railroad in New York. One of the men on the truck took the bill of lading to the receiving clerk of the railroad who signed it and gave it back to him. Upon his return to the truck he agreed with his fellow to withhold the carton in question, and later the two delivered it to the accused under circumstances proving his guilty knowledge. As we have said, the only question is whether the carton had become “part of * * * an interstate * * .* shipment.”
Courts have at times found it difficult to decide what interruption of a movement, intended from the outset to cross a state border, was definitive enough to divide it into two parts, so that the first — if wholly within a state — was not within the Federal power. In Coe v. Town of Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715, the logs had actually performed the first leg of a journey which their owner, before he began to move them at all, intended to pass beyond the state. The pause was longer than in Hughes Brothers Co. v. Minnesota, 272 U.S. 469, 475, 47 S.Ct. 170, 71 L.Ed. 359; but if the original intent is to be the test— as it is generally said to be — it is hard to see any difference between the two cases. Be that as it may, the test of whether a state may tax the. goods is not a safe one for deciding whether Congress has power to regulate them. Stafford v. Wallace, 258 U.S. 495, 525, 526,42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; Lemke v. Farmers’ Grain Co., 258 U.S. 50, at page 55, 42 S.Ct. 244, 66 L.Ed. 458; Minnesota v. Blasius, 290 U.S. 1, 8, 54 S.Ct. 34, 78 L.Ed. 131. The cattle which it was lawful for Minnesota to tax in Minnesota v. Blasius, supra, would have been subject to the Anti-Trust Acts. Swift & Co. v. United States, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518. Again, as to the powers of the Interstate Commerce Commission over interstate rates, there can be no doubt that jurisdiction attaches as soon as the goods start on the journey, although the first carrier is not to carry them across a state line. Railroad Commission of Ohio v. Worthington, 225 U.S. 101, 32 S.Ct. 653, 56 L.Ed. 1004; Railroad Comm. of Louisiana v. Texas & Pacific Ry., 229 U.S. 336, 33 S.Ct. 837, 57 L.Ed. 1215. See also Philadelphia & Reading Railway Company v. Hancock, 253 U.S. 284, 40 S.Ct. 512, 64 L.Ed. 907. The nearest case we, have found under the statute at bar is Sharp v. United States, 5 Cir., 280 F. 86, and we do not see that it should make any difference that the goods were already in the same car which was to -carry them out of the state. Wolk v. United States, 8 Cir., 94 F.2d 310, would be flatly in point, were it not that the court held that the truckman was only an agent of the interstate carrier. Indeed, if he had not been, apparently the result would have been otherwise. To that we cannot agree. Although we have therefore not been able to find any authority precisely on all fours, we are satisfied that at least as soon as the goods have finally left the shipper’s possession and have come into the possession of any of those who are to forward them upon an interstate journey, intended to be such from the outset, they become a part of interstate commerce.
Conviction affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_adminrev
|
O
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
GALEOTA v. UNITED STATES GYPSUM CO.
No. 112.
Circuit Court of Appeals, Second Circuit.
Dec. 8, 1941.
Goodwin, Nixon, Hargrave, Middleton & Devans, of Rochester, N. Y. (W. Clyde O’Brien, of Rochester, N. Y., and Wendell J. Brown, of Chicago, 111., of counsel), for appellant.
William L. Qay, of Rochester N. Y., for appellee.'
Before SWAN, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The plaintiff Galeota, an employee of the defendant,. United States Gypsum Company, brought this action to recover damages for injuries he claims to have suffered because the defendant neglected to provide him with a safe place to work, or to furnish him with devices that would prevent him from inhaling particles of silica from which he contracted silicosis. He sought to recover for negligence of the defendant in failing to observe its common law obligations and also in failing to observe certain provisions of the Labor Law of the State of New York, Consol.Laws, c. 31.
Section 200 of the Labor Law of the State provides: “General duty to protect health and safety of employees. — All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein. The board shall make rules to carry into effect the provisions of this section.”
Section 417 of the Labor Law provides: “Ventilation. — An air current sufficient to remove smoke and noxious gases and to insure the safety of every employee shall be conducted along every passageway and working place.”
Rule 557 of State Industrial Bulletin No. 12 reads as follows: “In any industry, trade or occupation or process involving the creation of silica dust, there shall be provided means for removing such dust at the point of origin or preventing same from being disseminated in the air breathed by employees in so far as it is practicable to do so.”
The defendant evidently supposes that we are in a position to weigh the evidence and to reverse a judgment founded on a verdict against the weight of credible proof, but such is not the case in the United States Courts. We may only upset a verdict for failure of proof where the verdict is without substantial evidence to support it, as was not, in our opinion, the situation here.
The plaintiff’s expert Jerome Cowan tes- ' tilled that: “Silicosis is a disease caused by the inhalation of silica or sand particles and is characterized by an absence of fever and decreased ability to work, and an increased susceptibility to tuberculosis, and certain characteristic X-ray changes.” Cowan also testified that “the disease is incurable because of the chemical destruction of the lung tissue.”
The plaintiff’s proof of the defendant’s negligence was limited by the New York Statute of Limitations (Civil Practice Act, Section 49) to a period of three years' prior to the bringing of this action on August 18, 1933. In order to prevail, the plaintiff must show (1) that he had a condition of his lungs known as silicosis, and (2) that the condition was caused in whole or in part by negligence of the defendant occurring during the six months when he worked for the defendant in the years 1930, 1931 and 1933.
The plaintiff received a judgment for $8,305.08 in the court below from which the defendant now appeals. We hold that there was testimony from which the jury might lawfully find that the plaintiff contracted silicosis and that the disease was due to the defendant’s negligence during the six months mentioned. Accordingly the judgment should be affirmed.
The plaintiff testified that he first became dizzy and had sick spells during his employment and had to lay off work in 1930; that after going back to work he felt sick at night, coughed and had difficulty in breathing, felt a burning in his chest “like needles” and had to stop and rest. He added that his condition thereafter got worse. This his physicians attributed to silica particles which he had inhaled while working as a driller for the defendant. There was evidence that he worked in the defendant’s gypsum mine at Oakfield, Genesee County, New York, from November 10, 1930, to February 28, 1931, and in its limestone quarry for about six and one-half weeks in 1931, and five days in 1933.
While working in the gypsum mine he used an electric drill on the soft gypsum and a jackhammer, operated by air pressure on the harder rock. In the gypsum mine there was a layer of limestone rock above the vein of gypsum sometimes known as roof or fire rock. In some places there was between the vein of gypsum and the roof rock a layer containing a mixture of limestone and gypsum called ash rock. The mine was developed by pushing forward entries or rooms to the left and right -of the main passage. After extracting the ■vein of gypsum the roof of each entry is ■taken down for a width of nine feet so as to give clearance from the floor of seven feet and in this cleared entry to lay tracks .and install overhead wiring for an electric ■motor road to make a haulageway for the •removal of the gypsum. The plaintiff testified that he used an electric drill in working on the gypsum and a pneumatic jackhammer in dislodging roof and ash rock. The mine was so constructed that it could be ventilated by natural air currents and ■was equipped with a forced draft system whereby outside air was sucked into the mine by a fan located in a fan-house above ground.
The proof indicated that the gypsum rock contained only .3% of free silica, the limestone rock 2.4% free silica and 6.5% silicates, and the ash rock from 2.1 to 3.6% of the free silica and 36% of silicates. There also was testimony that an average of 66% of the free silica portion of the various samples was under 10 microns in .size.
As we have said, the plaintiff’s evidence indicated that when working in the mine he used an electric drill to remove the gypsum and a jackhammer to dislodge ash rock and roof rock. In each case dust was created. When using the jackhammer he said the dust was so thick that it looked like flour or smoke and a man could not be seen who was but three or four feet away. He testified that the places where he worked were sometimes so far from the fan that the condition of the air was bad and he got no ventilation. Moreover both he and some of his witnesses said that the fan was shut off at ten or half past ten o’clock in the morning so that during most of the working day it did not give the ventilation that should have been furnished. Likewise it ordinarily was not operated at night so that the day did not begin with a well ventilated mine. In addition to this, the jackhammers were not equipped with dust traps and when they were used to clean out holes that were being drilled the dust would come back into the places where men were working. No masks or respirators were furnished to the drillers.
When working in the limestone quarry the plaintiff used a jackhammer to bore holes in rock previously blasted so that it could be broken up for loading. In doing this it was necessary to bend over and lean on the drill, with the result that his mouth was only about two and one-half feet away from the drill hole. There would be dust in the hole which necessarily would be forced out by the drill and come all over the driller. The' jackhammer had no dust trap to catch the dust, there was no suction device to suck it away and no mask or respirator for the workmen. The plaintiff said that four or five other drillers would be working at the same time as himself.
The defendant introduced evidence contradicting much of the plaintiff’s proof. It was to the effect that drilling with a jackhammer was not done by the plaintiff, that the fan was operated at all times during working hours and that the places where he worked were properly ventilated and free from silica dust. In our opinion, these issues were for the jury and must be regarded as settled in plaintiff’s favor by the verdict.
The defendant attacks the verdict mainly on the ground that there was no proof of the amount of free silica present in any dust which the plaintiff inhaled. In other words, it is argued that the plaintiff did not support the burden of showing how much silica was in the air he breathed and whether it was dangerous in amount. But Dr. Cowan testified that there was an increased fibrosis shown in the X-ray photographs of the plaintiff’s lungs, that their condition was abnormal and diseased, and in answer to a hypothetical question based on the plaintiff’s evidence, said that the latter was suffering from silicosis produced by exposure to the conditions we have mentioned. The testimony of Dr. Laidlaw and Dr. Popoff was to the same effect. The testimony was, we think, sufficient to go to the jury and to justify the verdict for the plaintiff however we might have resolved the issues were we the fact finding body. There was proof that he was drilling in formations which contained substantial amounts of silica from which dust was created and not carried off, and there was also proof that a disease resulted having all the characteristics of silicosis. This was enough for submission to a jury of the cause of the disease. Its verdict concludes us. Pieczonka v. Pullman Co., 2 Cir., 102 F.2d 432; Jacque v. Locke Insulator Corp., 2 Cir., 70 F.2d 680; Downing v. Oxweld Acetylene Co., 112 N.J.L. 25, 169 A. 709; Bellows v. Merchants Despatch Trans. Co., 257 App.Div. 15, 12 N.Y.S.2d 655, affirmed 283 N.Y. 581, 27 N.E.2d 440.
The defendant contends that the plaintiff was barred from recovery by his own contributory negligence and by his assumption of risks inherent in his employment. There was nothing to show that the defendant instructed this employee that inhaling the dust would result in serious danger to him. This was its duty to a day laborer of no apparent education. Jacque v. Locke Insulator Corp., 2 Cir., 70 F.2d 680, 683. According to the plaintiff’s witnesses there likewise was no showing that defendant furnished him with proper appliances to avoid exposure to silica dust or with a safe place to work. Neglect to perform these obligations precluded it from successfully maintaining the defense of assumption of risk. Gustav Pantzar v. Tilly Foster Iron Mining Co., 99 N.Y. 368, 2 N.E. 24; Dana, Adm’r v. New York Cent. & H. R. R. Co., 92 N.Y. 639. Whether the plaintiff was guilty of contributory negligence in continuing to work after the dust had once made him sick was a question for the jury. Bellows v. Merchants Despatch Trans. Co., 257 App.Div. 15, 12 N.Y.S.2d 655, affirmed 283 N.Y. 581, 27 N.E.2d 440. The plaintiff denied that he knew that the dust was dangerous or that his disabilities were due to inhaling it (Record, pp. 52, 75 and 76).
The trial court committed no error in admitting Rule 557 of State Industrial Bulletin No. 12. The rule became effective January 1, 1931, but the plaintiff was employed long after that date. The rule on its face was designed to provide safeguards against silica dust and was plainly applicable to just such a situation as the present. Schmidt v. Merchants Despatch Trans. Co., 270 N.Y. 287, 200 N.E. 824, 104 A.L.R. 450.
It is contended that there was error in excluding proof offered by the defendant to show the cost per day of electricity necessary to operate the ventilator fan. Possibly this should have been admitted as indicating that the cost would have been so trifling as to render plaintiff’s testimony that the fan was turned off every day at 10 a. m. improbable, at least as a business economy. But the evidential value of the proof was slight and its relation to the issue whether the fan operated during working hours so remote that we cannot regard its exclusion as substantially prejudicial.
Judgment affirmed.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
|
songer_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
COMMONWEALTH BANK et al. v. UNITED STATES.
No. 8312.
Circuit Court of Appeals, Sixth Circuit.
Nov. 13, 1940.
Charles F. Meyler and Leo F. Covey, both of Detroit, Mich.-, for appellants.
Leon F. Cooper, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gem., Sewall Key and Leon F. Cooper, Sp. Assts. to Atty. Gen., and John C. Lehr and T. Thomas Smith, both of Detroit, Mich., on the brief), for appellee.
Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.
SIMONS, Circuit Judge.
The suit was brought by the United States to enforce liability against the appellant bank and two of its officers, for failure to surrender property or property rights alleged to be in the possession of the bank, belonging to a delinquent taxpayer, and subject to distraint under § 1114(e) of the Revenue Act of 1926, 26 U.S.C.A. Int.Rev.Acts, page 325. The bank defended upon the ground that it possessed no property of the taxpayer and if so had rights therein superior to the claims of the government, and with its codefendants appeals from a judgment in favor of the United States.
The delinquent taxpayer is John J. Hoefle (see Hoefle v. Commissioner, 6 Cir., 114 F.2d-713, decided September 16, 1940), who for several years carried a substantial commercial checking account with the bank. On October 31, 1933, affidavits were served upon the bank, sworn to by Wm. C. Rands, of Detroit, setting forth that his name, and the name of a corporation of which he was president, had been forged upon dividend checks issued by various corporations in which Rands, or Rands, Inc., was the payee, aggregating upwards of $30,000, and demanding payment from the bank, and all other responsible parties, for the amount of the checks. Photostatic copies of the allegedly forged checks, filed with the affidavits, disclosed that they were endorsed in the name of the payee, followed by the name “John J. Hoefle.” An investigation made by the bank showed that the checks had been deposited by Hoefle, credited to his account, and the proceeds paid out upon his signature. The deposited checks had been collected from drawee banks, through various other banks and clearing houses. At the time of the investigation, Hoefle had a balance in his checking account of $552.64, but on the 26th of October, he had deposited an additional sum of $10,310.73, against which cashier’s checks in like amount, payable to the Collector of Internal Revenue at Detroit, had been delivered to him. Inquiry at the Collector’s office brought the information that the cashier’s checks had not been delivered to the Collector, and there was no record there of any sum owing by Hoefle for taxes. On November 2, Hoefle returned the cashier’s checks to the bank with the request that they be canceled and new checks, in the same aggregate amount, issued, one of them payable to Hoefle himself, and others to the Collector, whereupon the bank informed Hoefle of Rands’ claim of forgery and advised him that all his funds would be held by the bank as an off-set against his liability to it.
On the 10th of November, Hoefle presented at the bank a general assignment of all his right to money on deposit, and all other property in the possession of the bank, to one Schaeffer. He was advised that the assignment would not be honored until the bank’s liabilities, arising out of Hoefle’s deposits, had been determined and satisfied. On December 11th, the Collector at Detroit made a demand upon Hoefle for the payment of delinquent taxes in excess of $50,000, in pursuance of certificates of assessment received from Washington. Contemporaneously the Collector filed with the Register of Deeds for Wayne County, Michigan, and with the Clerk of the United States District Court for the Eastern District of Michigan, notice of a tax lien claimed by the government, against all property and property rights belonging to Hoefle. Warrants of distraint followed on December 21, 1933, and a notice of levy, together with copies of the distraint warrants and lien notice, was served upon the bank together with a demand that it surrender all money, property, and property, rights belonging to Hoefle. The bank refused, advising the Collector of the possibility that it might be held liable for alleged forgeries of checks deposited by Hoefle, and that no funds belonging to him would be surrendered until its liability had been determined.
The government began its action on February 6, 1936. In the meantime, numerous claims had been filed against the bank by banks which had endorsed the allegedly forged checks in process of collection, and Rands had brought suits against the drawers of the checks, including one against a Canadian Corporation, in the Supreme Court of Ontario. All of the defendants called upon the bank to defend. Conceiving that liability would be asserted against it in the event that Rands should prevail, the bank undertook defense and.expended substantial sums in investigation, retainer of attorneys, and preparation for trial.' The first case to reach trial was that in Ontario, where the bank successfully defended on a by-law of the dividend-paying corporation, which constituted the issuance and mailing of a dividend check payment of its dividend obligation. The Ontario judgment, with other circumstances, led to a settlement between Rands, Hoefle, and the appellant bank, whereby the liability of each of the parties, growing out of the alleged forgeries, was discharged. The settlement was consummated in May, 1937, and by it the bank’s loss first became fixed and determinable.
Schaeffer was permitted to intervene in the proceedings below, to plead his assignment of Hoefle’s claim against the bank, and to pray for judgment against it. The bank responded with a denial of the intervener’s rights under the assignment. Upon trial, appellants and appellee offered to waive a jury, but the intervener declined. At the close of all the proofs, the court, of its own motion and over the objections of all parties, dismissed the intervener from the proceeding, and, acting upon the earlier waiver of the remaining parties, dismissed the jury, took the cause under advisement, and later, upon announcing findings of fact and conclusions of law, entered judgment for the government for an amount equal to Hoefle’s deposit balance including the impounded cashier’s checks.
Section 1114(e) of the Revenue Act of 1926, provides that any person in possession of property or rights to property subject to distraint, upon which a levy has been made, shall, upon demand by the Collector, or his deputy, surrender such property or rights unless they were subject to an attachment or execution under judicial process, and that any person who fails ,to do so shall be liable to the United States in a sum equal to the value of the property or rights not surrendered, up to the amount of the taxes for the collection of which the levy was made.
The first contention of the appellant is that there was no valid levy against Hoefle, because ten days had not elapsed between the date of notice and demand and the levy, and that the levy was, therefore, premature and void. We need give little consideration to this contention since the appellant is not the taxpayer and the latter is not here to complain. United States v. First Capital Nat. Bank, 8 Cir., 89 F. 2d 116; United States v. American Exchange Irving Trust Co., D.C.N.Y., 43 F. 2d 829. Were the controversy one that involved, primarily, priority of liens, inquiry might be made as to their validity, though this we do not decide. There is no issue here, however, of priority. If the bank has a lien upon funds owing by it to Hoefle, its lien is clearly prior to that of the government.
That the appellant has been in doubt as to the legal principle to be invoked again.st the imposition of the liability asserted by the government, is obvious. At the outset it claimed a lien upon funds ostensibly belonging to Hoefle. Concluding, however, that there were no specific funds in its possession belonging to Hoefle, .since the relationship of a bank to its depositor is merely that of a creditor. Keyes v. Paducah & I. R. Co., 6 Cir., 61 F.2d 611, 86 A.L.R. 203, and Hoefle’s deposit was not ear-marked, or set apart from other funds of the bank, it sensed anomaly in claiming a lien upon its own funds. It now takes the position that it was not in possession of property or rights of property belonging to the debtor, because its indebtedness to Hoefle had become subject.to the terms of an agreement it had made with Hoefle, prior to the levy, whereby the bank acquired the right to indemnify itself for any expense incurred by it as a result of such claims, the consideration for the agreement being the bank’s undertaking to defend against them and to pay over to Hoefle any balance remaining, with interest thereon at savings bank rates. This necessitates some amplification of the facts of record.
Appellant’s counsel, Meyler, gave evidence that, following Hoefle’s first call upon the bank, and before the date of the tax levy, Hoefle had had an interview with him during which an agreement had been reached that the bank might hold any funds to which Hoefle was entitled, as indemnity against any loss or expense which it might incur by reason of the alleged forgeries, and that if Hoefle would assist and cooperate in the defense of claims against the bank, any part of the fund eventually determined to be his would carry savings bank interest, that the bank carried put this agreement, was successful in resisting judgments that ultimately might have imposed a liability upon Hoefle or the bank, and incurred thereby an expense in excess of $7,000. It is this sum which it seeks to set off against any moneys owing to Hoefle.
It is undisputed that the bank incurred no liability by reason of its endorsement and collection of the allegedly forged dividend checks. Its claim of right to be compensated for the expense incurred in defending suits, including those to which it was not itself a party, rests entirely upon the oral agreement claimed to have been made with Hoefle. The court below found the terms of the alleged agreement to be vague and uncertain. Meyler’s testimony is uncorroborated, and Hoefle was not called by either side as a witness. The court assumed that if he had been, he would have testified adversely to the bank’s contention and that there was no such oral agreement. The presumption is unwarranted. Meyler is a practitioner in good standing in this circuit; has been for many years attorney for the bank; and Hoefle’s interests were adverse. No inference may be invoked that Meyler’s testimony was either deliberately, or, through faulty memory, inaccurate. We have said, upon another occasion, Voltz v. Treadway & Marlatt, 6 Cir., 59 F.2d 643, 644, “While the testimony of interested parties to an alleged parol assignment should undoubtedly be received with some caution, In re Macauley, D.C.Mich., 158 F. 322, yet where such parol assignment is established by testimony which is uncontradicted and credible, by witnesses who are not impeached, and there are no circumstances which cast doubt upon their truthfulness, it will be upheld.”
But to accept the truth of Mr. Meyler’s testimony is not to determine the validity of the alleged parol agreement, or the definiteness of its terms. The court found them vague and uncertain, and so they appear to be. Undoubtedly, what the parties to the agreement had principally in mind, was a possible loss to the bank upon its endorsements. No loss was sustained. There are, moreover, circumstances which indicate that neither Hoefle nor the bank recognized any oral assignment to result from Mr. Meyler’s interview with Hoefle. The interview took place on or about November 6 or 8, 1933. Yet within a few days thereafter, Hoefle appeared at the bank with an assignment to Schaeffer, dated November 2, 1933. The bank, in refusing to recognize the assignment, asserted no right to retain the funds under any agreement made between Hoefle and Meyler. It made no entry upon its books indicating that the items were held as an indemnity, or pledge, to secure Hoefle’s possible liability to it. Throughout the controversy its ledger sheet, reflecting Hoefle’s account, showed a balance of $500, without notation that this sum was retained in pledge of any contingent liability. Likewise, is there no notation upon the cashier’s checks impounded, to indicate that they too were held as a pledge for security against loss or expense for defending suits. There is no charge against Hoefle’s account for sums expended in litigation or preparation for trial, and it must be presumed that such items were charged to general operating expenses. Nor was there credit to Hoefle for savings bank interest, in accordance with the terms of the agreement. While the bank’s defense against litigation, and Hoefle’s cooperation with it, is consistent with the terms of the agreement, the circumstances are equally consistent with the purpose of both to protect individual interests. The conclusion is inescapable that the bank either did not authorize or ratify Meyler’s agreement with Hoefle, or, having done so, repudiated it, and so also did Hoefle.
The Bank’s contention that there was error in dismissing Schaeffer as an intervener is of no avail to it. Schaeffer did not appeal and the bank’s answer to his intervening petition was a denial of Schaeffer’s rights under his assignment. There is ample basis in the record for a conclusion that the assignment was but a subterfuge designed to defeat the claim of the United States. The loan for which it stood as security was, in fact, a withdrawal of Hoefle’s own funds from an account carried in the name of Schaeffer, his brother-in-law. Whether the dismissal of the intervening petition is an adjudication of its invalidity, we do not undertake to decide. The court made an order preserving the evidence bearing upon the Schaeffer assignment, in the event that at another time, and in other litigation, its validity might come into question. This was for the protection of the bank.
Finally, it must be said that the terms of the statute, under which the tax levy was made, recognize no defense except where there is no property or property right of the taxpayer in the defendant’s possession, where the property or right is not subject to distraint, or is subject to an attachment or execution under some judicial process. The proceeding authorized is not an action in rem, nor is it a suit for the collection of a tax. It is a suit to enforce personal liability for failure to surrender property belonging to delinquent taxpayer.
The judgment below is affirmed.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_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
FEDERAL PUBLIC HOUSING AUTHORITY et al. v. MOBILE HOUSING BOARD et al.
No. 11810.
Circuit Court of Appeals, Fifth Circuit.
Nov. 7, 1947.
Joseph Burstein, Atty., Public Housing Adm., of Washington, D. C., and Percy G Fountain, Asst. U. S. Atty., of Mobile, Ala., for appellants.
Alexander Foreman, Jr., of Mobile, Ala., for appellees.
Before McCORD, WALLER, and LEE, Circuit Judges.
WALLER, Circuit Judge.
By the complaint and bill of particulars it was shown that appellant, Federal Public Housing Authority [hereinafter sometimes referred to as “Federal”], had made a loan to the Mobile Housing Board [hereinafter sometimes referred to as “Mobile”], of in excess of $1,500,000 to aid in construction of low-rent housing projects and as security for said loan had taken the bonds issued by the Board of Directors of the Mobile unit. In the contract Federal was obligated to pay to Mobile an annual contribution of 3%% of the development costs of the units. All net earnings of Mobile Housing Project were required to be used for the payment of principal and interest on the bonds, and any excess of earnings over operation costs and debt service would go in reduction of the contribution which Federal had agreed to make annually.
Appellant alleged that the defendants willfully, wrongfully, and arbitrarily violated the provisions of the contract in purchasing insurance at a cost greater than the lowest available rate in financially sound and responsible companies and thereby had increased the cost of operation of the housing project and that this had adversely deprived appellant of the advantage of having the sum represented by said excess insurance costs applied to the reduction of Federal’s annual contribution.
Appellee had theretofore secured its insurance from fixed-premium stock companies. Appellant insisted in its complaint that insurance could be obtained in certain mutual companies which were financially sound and responsible, at a considerable annual saving by reason of the fact that those mutual insurance companies regularly return a dividend to the policyholder and without ever having exercised the reserved right and privilege of said mutual companies to require an assessment against the policyholder when necessary to pay losses.
Appellant exhibited a binder from Firemen’s Mutual Insurance Company covering the insurance in question, and it alleged that the insurance could be purchased from said Firemen’s Mutual Insurance Company for a deposit premium of 330 per hundred dollars for a three-year policy, and that said company had for many years past re-returned to the policyholder a dividend of at least 70% of the deposit premium, but it further alleges that assessments could be made by said company equal to five times the annual deposit premium. Although the appellant obtained a binder from the Firemen’s Mutual Insurance Company, which is a company that may make assessments equal to five times its annual deposit premium, it nevertheless gave the names of five mutual companies, which it states were non-assessable companies, from which it asserted the insurance could be purchased for 300 per hundred dollars. Appellant tendered no binder from those companies.
After it learned, subsequent to the bringing of the suit, that Federal proposed to procure insurance on a three-year, instead of a one-year basis, appellee secured insurance on a three-year basis at the rate of 300 per hundred from stock companies without the provision for either assessments or dividends. The initial rate for which appellant secured a binder from Firemen’s Mutual Insurance Company was 330 per hundred and was in excess of the rate of 300 per hundred for the three-year policies issued by the stock companies. Appellant asserts that the history of the mutual companies from which it proposed to secure the insurance revealed a regularity of annual dividends and a total absence of assessments, and, therefore, it argues that the mutual insurance which it sought to have issued was lower than the rate of stock companies by virtue of the dividend provisions in the mutual policies, even though the tendered policy obligated the policyholders to pay an assessment of not to exceed five times the initial premium deposit in the event same became necessary to meet losses.
Thus the complaint sought to convert the age-old economic controversy as to the advantage or disadvantage of mutual fire insurance over fixed-premium stock company insurance into a judicial controversy.
From time immemorial business men and economists have differed on this question. Neither Congress nor the legislatures of the states have settled the issue, and the type of fire insurance that a business man selects has long been considered a matter of economic choice.
It cannot be gainsaid that if the rate charged by the stock companies and the mutuals were each 30^ per hundred, and if the premium charged by the mutual were actually reduced by an excess of premiums collected over cost, then the cost of mutual insurance would be less than the cost of stock company insurance. The test set out in the contract between Federal and Mobile is not the ultimate cost of the insurance, but the test is the rate. If the rates here were the same, the ultimate cost of the insurance to the policyholder would be less to the holder of the mutual policy, provided there is a dividend paid and provided there are no assessments. Notwithstanding the history of the mutual company that executed the binder in regularly paying dividends and in not making assessments, nevertheless both are contingent. Either may or may not happen. The fact that a company has regularly paid dividends and has never called upon its policyholders for an assessment does not prove that a great catastrophe, such as a hurricane that devastates great areas or a fire that destroys a great city, could not occur and thereby prevent the paying of dividends or demand the collection of assessments. Whether these things will happen cannot be settled by-court decree. Whether it is a part of economic wisdom for the policyholder to acquire insurance at a fixed sum with no further liability to him, or whether he should take out insurance with the possibility of reduced cost but with the attendant possibility of being called upon to assist in paying the loss of others, is an economic issue that involves business discretion. It is not a judicial question in the absence of a definite and positive agreement to take out one type of insurance as distinguished from some other kind.
The Mobile Housing Board is a public body organized under the law of Alabama, having a Board of Directors clothed with the power to exercise its discretion in the management of the business of the housing unit, and as such it did not contract away to the Federal Public Housing Authority its discretion to settle the economic question presented in this case. In the absence of an abuse of that discretion the federal courts cannot, and should not, interfere. Van Antwerp et al. v. Board of Commissioners, City of Mobile, 217 Ala. 201, 115 So. 239; Pilcher v. City of Dothan, 207 Ala. 421, 93 So. 16; Henderson v. City of Enterprise, 202 Ala. 277, 80 So. 115. The jurisdiction of the federal courts is limited to judicial cases and controversies. Whether, for instance, the mutual insurance companies involved in this case actually carried large risks in the areas of Florida, Alabama, Mississippi, and’Louisiana, where the recent great hurricane destroyed insured property of the value of many millions of dollars, such as might necessitate calling upon the policyholders to respond to assessments would not now be an appropriate question. But whether or not the consideration of such a possibility might be such as would influence a reasonable person in procuring insurance of a particular type is a question that calls for an answer over which the minds of reasonable men might differ, and the possession of the correct answer to which is not an exclusive attribute of-judicial wisdom. The amount, type, and spread of the risks of insurance companies, mutual or otherwise, as well as the reputation and character of service rendered by the companies, their agents, engineers, adjusters, etc., are economic factors that address themselves to sound business discretion. The power to prophesy as to the time and extent of catastrophes might have been an attribute of the judges of ancient Israel, but that attribute does not adhere in judges of the federal cqurts of the present day.
The plaintiff alleges that: “The purchase of the insurance risks hereinbefore referred to, in violation of said contract, at a higher rate than available from financially sound and responsible insurance companies, will directly affect such excess earnings and require a greater amount of annual contribution from the plaintiff.”
Moreover, the complaint fails to allege either: (a) that the Mobile Housing Board is insolvent and could not be made to respond to any judgment recoverable by virtue of such an alleged breach of its contract ; (b) that the defendant had defaulted in the payment of the principle or interest on its bonds; (c) that its cost of operation had exceeded its earnings, and that in consequence appellant had been compelled to make expenditures; (d) that the alleged savings on insurance would have been sufficient to prevent appellant from annually making the contribution of 3%% according to its contract. It, therefore, seems that its allegation of immediate and irreparable injury is a mere legal conclusion. But be that as it may, we believe that the judgment of the lower Court was correct for the reason that the Board of Directors of the Mobile Housing Board had a discretion in the matter which is not shown to have been abused, and the exercise of which was unattended by fraud, without which there existed no justiciable issue.
The judgment of the Court below is affirmed.
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_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Bobby R. CARPENTER, Defendant-Appellant.
No. 17877.
United States Court of Appeals Sixth Circuit.
April 11, 1968.
H. Wayne Grant, Chattanooga, Tenn., for appellant; Williams, Grant & Clements, Chattanooga, Tenn., of counsel.
John H. Reddy, U. S. Atty., Chattanooga, Tenn., for appellee; Robert A. Scott, Asst. U. S. Atty., Chattanooga, Tenn., on brief.
Before O’SULLIVAN, PHILLIPS, and COMBS, Circuit Judges.
COMBS, Circuit Judge.
The defendant-appellant, Bobby R. Carpenter, worked for the operators of a numbers game in Chattanooga, Tennessee. He was placed under surveillance by federal officers, and on three occasions in April and two occasions in July, 1966, was observed as he travelled by automobile from Rossville, Georgia, to the headquarters of the numbers racket in Chattanooga. The Tennessee-Georgia state line separates the city of Chattanooga from the town of Rossville. Carpenter was indicted and convicted for violating the Travel Act, 18 U.S.C. § 1952, which prohibits travel in interstate commerce with the intent to promote or engage in illegal gambling activities.
It is admitted that Carpenter crossed the state line as charged in the indictment, and it is not denied that he was engaged in the operation of a numbers racket or lottery prohibited by the laws of Tennessee. Carpenter offered proof, which was not denied, that his permanent residence was at his mother’s home in Chattanooga and that his trips to Georgia had no connection with his activities in the gambling operation. Carpenter and his wife were separated and under the order of custody he had the right to visit his minor son. His married sister lived in Rossville and at irregular intervals the child was brought to her home for short visits. On these occasions Carpenter stayed overnight there in order to be with his son. On the dates referred to in the indictment he was going from his sister’s home in Georgia to his place of employment in Chattanooga. It is contended by Carpenter that the trips from Georgia back to Tennessee did not violate the Travel Act. There being no dispute about the facts, the case turns on whether he was entitled to a verdict of acquittal as a matter of law.
Carpenter relies on the line of cases of which Mortensen v. United States, 322 U.S. 369, 64 S.Ct. 1037, 88 L.Ed. 1331 (1944), is typical. Mortensen and his wife operated a house of prostitution in Grand Island, Nebraska. They were making plans to visit Mrs. Mortensen’s parents in Salt Lake City, Utah. Two of the prostitutes requested that they be permitted to go along as a vacation to them. The Mortensens agreed and the two girls accompanied them to Salt Lake City and returned with them to Nebraska. No prostitution was practiced on the trip but it was intended that the girls would resume their profession upon their return to Nebraska. The Mortensens were indicted and convicted for violation of the Mann Act. In reversing the judgment, the Supreme Court said:
“An intention that the women or girls shall engage in the conduct outlawed by Section 2 must be found to exist before the conclusion of the interstate journey and must be the dominant motive for such interstate movement. And the transportation must be designed to bring about such result.”
To the same general effect is Hansen v. Haff, 291 U.S. 559, 54 S.Ct. 494, 78 L.Ed. 968 (1934), and United States v. Hawthorne, 356 F.2d 740 (4th Cir. 1965), cert. denied, 384 U.S. 908, 86 S.Ct. 1344, 16 L.Ed.2d 360 (1966).
We do not consider those cases as controlling here. The reasoning in those cases is that the interstate travel was not directly connected with the illegal activity; or stated differently, the promotion of the illegal activity was not the dominant motive for the travel. In this case, Carpenter went directly from his sister’s home in Georgia, where he was temporarily residing, to the gambling house in Tennessee. The officers testified that occasionally he took a circuitous route, apparently in an effort to avoid surveillance. On one occasion, at a parking lot he picked up a woman who also worked in the gambling operation and took her to the gambling house.
So far as is shown by the record, Carpenter’s only purpose in going from his sister’s home in Georgia to his place of employment in Tennessee was to assist in the gambling operation. Certainly, the jury had the right to reach this conclusion. It may be conceded that, in going from Tennessee into Georgia to visit his son, his motives were commendable and that he violated no law; but he was not tried for going into Georgia. He was tried for making the trips from his sister’s home in Georgia to the gambling house in Tennessee. The statute prohibits interstate travel with intent to “promote, manage, establish, carry on” an unlawful activity, including illegal gambling. We are of the opinion that the facts of this case meet the requirements of the statute. Compare United States v. Compton, 355 F.2d 872 (1966), where this Court upheld a conviction in somewhat similar circumstances.
The judgment is affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
OHIO v. ROBINETTE
No. 95-891.
Argued October 8, 1996
Decided November 18, 1996
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment, post, p. 40. Stevens, J., filed a dissenting opinion, post, p. 45.
Carley J. Ingram argued the cause for petitioner. With her on the briefs was Mathias H. Heck, Jr.
on Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, Paul A. Engel-mayer, and Joseph C. Wyderko. brief for
mayer, James D. Ruppert argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were bama et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Simon B. Karas, and by the Attorneys General for their respective States as follows: Jeff Sessions of Alabama, Daniel E. Lungren of California, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert Butterworth of Florida, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Jim Ryan of Illinois, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. leyoub of Louisiana, Andrew Ketterer of Maine, J Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Ma-zurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Deborah T. Poritz of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, W. A. Drew Edmondson of Oklahoma, Theodore Kulongoski of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Mark Bennett of South Dakota, Charles W. Bursen of Tennessee, Dan Morales of Texas, Jeffrey L. Amestoy of Vermont, James S. Gilmore III of Virginia, Darrell V. McGraw, Jr., of West Virginia, James E. Doyle of Wisconsin, and William U. Hill of Wyoming; and for Americans for Effective Law Enforcement, Inc., by Fred E. lnbau, Wayne W. Schmidt, James P. Manak, and Bernard J. Farber.
Tracey Maclin, Steven R. Shapiro, and Jeffrey M. Gamso filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Briefs of amicus curiae were filed for the National Association of Criminal Defense Lawyers by Sheryl Gordon McCloud; and for the Ohio Association of Criminal Defense Lawyers by W. Andrew Hasselbach.
Chief Justice Rehnquist
delivered the opinion of the Court.
We are here presented with the question whether the Fourth Amendment requires that a lawfully seized defendant must be advised that he is “free to go” before his consent to search will be recognized as voluntary. We hold that it does not.
This case arose on a stretch of Interstate 70 north of Dayton, Ohio, where the posted speed limit was 45 miles per hour because of construction. Respondent Robert D. Robi-nette was clocked at 69 miles per hour as he drove his car along this stretch of road, and was stopped by Deputy Roger Newsome of the Montgomery County Sheriff’s Office. New-some asked for and was handed Robinette’s driver’s license, and he ran a computer check which indicated that Robinette had no previous violations. Newsome then asked Robinette to step out of his car, turned on his mounted video camera, issued a verbal warning to Robinette, and returned his license.
At this point, Newsome asked, “One question before you get gone: ]A]re you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?” App. to Brief for Respondent 2 (internal quotation marks omitted). Robinette answered “no” to these questions, after which Deputy Newsome asked if he could search the car. Robinette consented. In the car, Deputy Newsome discovered a small amount of marijuana and, in a film container, a pill which was later determined to be methylenedioxymeth-amphetamine (MDMA). Robinette was then arrested and charged with knowing possession of a controlled substance, MDMA, in violation of Ohio Rev. Code Ann. §2925.11(A) (1993).
Before trial, Robinette unsuccessfully sought to suppress this evidence. He then pleaded “no contest,” and was found guilty. On appeal, the Ohio Court of Appeals reversed, ruling that the search resulted from an unlawful detention. The Supreme Court of Ohio, by a divided vote, affirmed. 73 Ohio St. 3d 650, 653 N. E. 2d 695 (1995). In its opinion, that court established a bright-line prerequisite for consensual interrogation under these circumstances:
“The right, guaranteed by the federal and Ohio Constitutions, to be secure in one’s person and property requires that citizens stopped for traffic offenses be clearly informed by the detaining officer when they are free to go after a valid detention, before an officer attempts to engage in a consensual interrogation. Any attempt at consensual interrogation must be preceded by the phrase At this time you legally are free to go’ or by words of similar import.” Id., at 650-651, 653 N. E. 2d, at 696.
We granted certiorari, 516 U. S. 1157 (1996), to review this per se rule, and we now reverse. to
per se We must first consider whether we have jurisdiction to review the Ohio Supreme Court’s decision. Respondent contends that we lack such jurisdiction because the Ohio decision rested upon the Ohio Constitution, in addition to the Federal Constitution. Under Michigan v. Long, 463 U. S. 1032 (1983), when “a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.” Id., at 1040-1041. Although the opinion below mentions Art. I, §14, of the Ohio Constitution in passing (a section which reads identically to the Fourth Amendment), the opinion clearly relies on federal law nevertheless. Indeed, the only cases it discusses or even cites are federal cases, except for one state case which itself applies the Federal Constitution.
Our jurisdiction is not defeated by the fact that these citations appear in the body of the opinion, while, under Ohio law, “[the] Supreme Court speaks as a court only through the syllabi of its cases.” See Ohio v. Gallagher, 425 U. S. 257, 259 (1976). When the syllabus, as here, speaks only in general terms of “the federal and Ohio Constitutions,” it is permissible for us to turn to the body of the opinion to discern the grounds for decision. Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 566 (1977).
Respondent Robinette also contends that we may not reach the question presented in the petition because the Supreme Court of Ohio also held, as set out in the syllabus paragraph (1):
“When the motivation behind a police officer’s continued detention of a person stopped for a traffic violation is not related to the purpose of the original, constitutional stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some separate illegal activity justifying an extension of the detention, the continued detention constitutes an illegal seizure.” 73 Ohio St. 3d, at 650, 653 N. E. 2d, at 696.
In reliance on this ground, the Supreme Court of Ohio held that when Newsome returned to Robinette’s car and asked him to get out of the car, after he had determined in his own mind not to give Robinette a ticket, the detention then became unlawful.
Respondent failed to make any such argument in his brief in opposition to certiorari. See this Court’s Rule 15.2. We believe the issue as to the continuing legality of the detention is a “predicate to an intelligent resolution” of the question presented, and therefore “fairly included therein.” This Court’s Rule 14.1(a); Vance v. Terrazas, 444 U. S. 252, 258-259, n. 5 (1980). The parties have briefed this issue, and we proceed to decide it.
We think that under our recent decision it. United States, 517 U. S. 806 (1996) (decided after the Supreme Court of Ohio decided the present case), the subjective intentions of the officer did not make the continued detention of respondent illegal under the Fourth Amendment. As we made clear in Whren, “ ‘the fact that [an] officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.’ . . . Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id., at 813 (quoting Scott v. United States, 436 U. S. 128, 138 (1978)). And there is no question that, in light of the admitted probable cause to stop Robinette for speeding, Deputy Newsome was objectively justified in asking Robinette to get out of the car, subjective thoughts notwithstanding. See Pennsylvania v. Mimms, 434 U. S. 106, 111, n. 6 (1977) (“We hold . . . that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures”).
We now turn to the merits of the question presented. We have long held that the “touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500 U. S. 248, 250 (1991). Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.
In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry. Thus, in Florida v. Royer, 460 U. S. 491 (1983), we expressly disavowed any “litmus-paper test” or single “sentence or . . . paragraph . . . rule,” in recognition of the “endless variations in the facts and circumstances” implicating the Fourth Amendment. Id., at 506. Then, in Michigan v. Chesternut, 486 U. S. 567 (1988), when both parties urged “bright-line rule[s] applicable to all investigatory pursuits,” we rejected both proposed rules as contrary to our “traditional contextual approach.” Id., at 572-573. And again, in Florida v. Bostick, 501 U. S. 429 (1991), when the Florida Supreme Court adopted a per se rule that questioning aboard a bus always constitutes a seizure, we reversed, reiterating that the proper inquiry necessitates a consideration of “all the circumstances surrounding the encounter.” Id., at 439.
We have previously rejected a per se rule very similar to that adopted by the Supreme Court of Ohio in determining the validity of a consent to search. In Schneckloth v. Bustamonte, 412 U. S. 218 (1973), it was argued that such a consent could not be valid unless the defendant knew that he had a right to refuse the request. We rejected this argument: “While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” Id., at 227. And just as it “would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning,” id., at 231, so too would it be unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.
The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and “[v]oluntariness is a question of fact to be determined from all the circumstances,” id., at 248-249. The Supreme Court of Ohio having held otherwise, its judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Respondent and his amici ask us to take this opportunity to depart from Michigan v. Long. We are no more persuaded by this argument now than we were two Terms ago, see Arizona v. Evans, 514 U. S. 1 (1995), and we again reaffirm the Long presumption.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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songer_usc1
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28
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Lodee PERRY, Appellant, v. UNITED STATES of America, Appellee.
No. 77-1986.
United States Court of Appeals, Eighth Circuit.
Submitted May 30, 1978.
Decided June 5, 1978.
David M. Johnson, Hayes & Heisler, Clayton, Mo., filed brief for appellant.
Robert D. Kingsland, U. S. Atty., and David M. Rosen, Asst. U. S. Atty., St. Louis, Mo., filed brief for appellee.
Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.
PER CURIAM.
Lodee Perry appeals from the District Court’s denial of his petition for habeas corpus filed pursuant to 28 U.S.C. § 2255. We affirm.
In 1975, in the United States District Court for the Eastern District of Missouri, Perry pled guilty to a charge of distributing heroin. He received a sentence of ten years and a special parole term of three years. Motions, pursuant to Fed.R.Crim.P. 35, for reduction of sentence were made and denied. In March, 1977, Perry filed a petition to vacate his sentence pursuant to 28 U.S.C. § 2255. The petition was denied. Perry v. U. S., 429 F.Supp. 938 (E.D.Mo.1977). Perry’s appeal to this Court was dismissed on June 14, 1977.
On September 14,1977, Perry filed another § 2255 petition seeking to vacate his sentence. In an unpublished memorandum and order, the District Court denied the petition finding that issues raised concerning the validity of Perry’s guilty plea were either previously considered in Perry’s first § 2255 petition and, therefore, they need not be reconsidered, or were without merit. This appeal followed.
Perry alleges that his plea was involuntary, uninformed and coerced because his attorney led him to believe a plea bargain had been struck whereby Perry would be sentenced to four years and be placed in a drug rehabilitation program, because his attorney told him what responses to give during the plea taking, because his attorney told him he would receive a thirty-year sentence if he went to trial and was found guilty, and because he was incompetent to respond to questioning due to drug addiction.
The transcript of the guilty plea hearing refutes these contentions, as does the affidavit of the attorney who represented Perry at the guilty plea hearing. At his plea taking, Perry answered “no” when asked if threats or promises had been made, or if any predictions had been made to him concerning his sentence. He answered “yes” when asked if he understood that he could receive a maximum of fifteen years and/or a fine of $25,000 and a special parole term of at least three years. In addition, he answered “yes” when asked if he did possess, on the stated date, one ounce of heroin. As the District Court held in regard to the first § 2255 petition, the transcript clearly illustrates that the plea taking hearing was adequate and the requirements of Fed.R.Crim.P. 11 were met. Perry v. U. S., supra at 939. See U. S. v. Cowin, 565 F.2d 548 (8th Cir. 1977); U. S. v. Williams, 536 F.2d 247 (8th Cir. 1976).
Perry also argues that the District Court’s failure to grant a continuance to enable Perry’s retained counsel to represent him forced Perry to accept appointed counsel and deprived him of his Sixth Amendment right to counsel. This argument was presented and decided adversely to Perry in his first § 2255 petition. Perry v. U. S., supra at 940. The record indicates that the District Court was willing to allow retained counsel to represent Perry, but no such person ever appeared. There is no allegation by Perry that the failure to grant a continuance resulted in Perry rendering an involuntary guilty plea, nor does Perry allege that his appointed counsel was ineffective. Even if the denial of the continuance was an abuse of discretion, it is not sufficient, under the circumstances presented here, to warrant a reversal. U. S. v. Gotches, 547 F.2d 80, 82 (8th Cir. 1977).
Perry further contends that the dismissal of Count I, after he pled guilty to Count II, removed a legal and factual basis for the charge under Count II, and that there was no evidence that he actually had possession of one ounce of heroin. Whatever claim he is raising concerning the sufficiency of the indictment was waived by his plea of guilty. Houser v. United States, 508 F.2d 509 (8th Cir. 1974). The claim that there was no evidence that he possessed one ounce of heroin must also fail. Regardless of whether this claim is one based on sufficiency of the evidence or on lack of a factual basis for the plea, Perry responded affirmatively when asked at the plea taking hearing whether' he had been in possession of one ounce of heroin. He does not now argue that his response was untrue.
The District Court’s denial of the petition is affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_decisiontype
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the 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.
FEDERAL TRADE COMMISSION v. SIMPLICITY PATTERN CO., INC.
No. 406.
Argued April 21, 1959.
Decided June 8, 1959.
Charles H. Weston argued the causes for the Federal Trade Commission. With him on the briefs were Solicitor General Rankin, Assistant Attorney General Hansen, Earl W. Kintner and James E. Corkey.
William Simon argued the causes for the Simplicity Pattern Co., Inc. With him on. the briefs were Robert L: Wald, David Vorhaus and Sidney Greenman.
Together with No. 447, Simplicity Pattern Co., Inc., v. Federal Trade Commission, also on certiorari to the same Court.
Mr. Justice Clark
delivered the opinion of the Court.
This case presents, for the first time in this Court, issues relating to the availability of certain defenses to a prima facie violation of § 2 (e) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526. The Federal Trade Commission has found that Simplicity Pattern Co., Inc., one of the Nation’s largest dress pattern manufacturers, discriminated in favor of its larger customers by furnishing to them services and facilities not accorded to competing. smaller customers on proportionally equal terms. The Commission held that neither the presence of “cost justification” nor the absence of competitive injury may constitute a defense to a § 2 (e) violation.
The Court of Appeals found that competition existed between the larger and smaller customers of Simplicity and, with one judge dissenting, held that an absence of competitive injury would not constitute a “justification” rebutting a prima facie showing of a § 2 (e) violation. Through a different majority, however, it remanded the case on the “cost justification” defense under § 2 (b), holding that Simplicity might rebut the prima facie case by showing that the discriminations in services and facilities were justified by differences in Simplicity’s costs in dealing with the two classes of customers. 103 U. S. App. D. C. 373, 258 F. 2d 673. The Commission, in No. 406, and Simplicity, in No. 447, filed cross-petitions for certiorari which we consider together. We granted both petitions because of the fundamental significance of these issues .in the application of an important Act of Congress. 358 U. S. 897. We have concluded that, given competition between the two classes of customers, neither absence of competitive injury nor the presence of “cost justification” defeats enforcement of the provisions of § 2 (e) of the Act. The action of the Commission in issuing the cease-and-desist order is, therefore,' affirmed.
Simplicity manufactures and sells tissue patterns which are used in the home for making women’s and children’s wearing apparel. Its volume of pattern sales, in terms of sales units, is greater than that resulting from the combined effort of all other major producers. The patterns are sold to some 12,300 retailers, with 17,200 outlets. For present purposes, these customers can be divided roughly into two categories. One, consisting largely of department and variety stores, comprises only 18% of the total number of customers, but accounts for 70% of the total sales volume. The remaining 82% of the customers are small stores whose primary business is the sale of yard-good fabrics.
About 600 different patterns are made available to Simplicity’s customers. New patterns are added at the rate of 40 per month, while three times annually the obsolete designs are discontinued so as to maintain the number of designs at a relatively constant level.. The different designs are displayed in a catalogue which is changed monthly in order to reflect the changes in available designs. The patterns themselves are stored and displayed in steel cabinets. The catalogues and storage cabinets are both furnished by Simplicity.
The variety stores handle and sell a multitude of relatively low-priced articles. Each article, including dress patterns, is sold for the purpose of returning a profit and would be dropped if it failed to do so. The fabric stores, on the other hand, are primarily interested in selling yard goods; they handle patterns at no profit or even at a loss as an accommodation to their fabric customers and for the purpose of stimulating fabric sales. These differences in motive are reflected in the manner in which each type of store handles its patterns. The variety stores devote the minimum amount of display space consistent with adequate merchandising — consisting usually of nothing more than a place on the counter for the catalogues, with the patterns themselves stored underneath the counter in the steel cabinets furnished by Simplicity. In contrast, the fabric stores usually provide tables and chairs where the customers may peruse the catalogues in comfort and at their leisure.
The retail prices of Simplicity patterns are uniform at 250, 350, or 500. Similarly, Simplicity charges a uniform price, to all its customers, of 60% of the retail price. However, in the furnishing of certain services and facilities Simplicity does not follow this uniformity. It furnishes patterns to the variety stores on- a consignment basis, requiring payment only as and when patterns are sold — thus affording them an investment-free inventory. The fabric stores are required to pay cash for their patterns in regular course. In addition, the cabinets and the catalogues are furnished to variety stores free while the fabric stores are charged therefor, the catalogues averaging from $2 to $3 each. Finally, all transportation costs in connection with, its business with variety stores are paid by Simplicity but none is paid on fabric-store transactions.
The free services and facilities thus furnished variety store chains are substantial in value. As to four variety store chains, the catalogues which Simplicity furnished free in 1954 were valued at $128,904; the cabinets furnished free which those stores had on hand at the end of 1954 were valued at over $500,000; and their inventory of Simplicity’s patterns at the end of 1954 was valued, at more than $1,775,000, each of these values being based tin Simplicity’s usual sales price. . Simplicity’s president testified that it would cost over $2,000,000 annually to give its other customers the free transportation, free, catalogues, and free cabinets furnished to variety stores.
Simplicity does not dispute these findings. Assuming that the existence of competition between purchasers is a necessary element in a § 2 (e) prosecution, it insists that no real competition in patterns exists between the variety and the fabric stores. It also contends that even if competition is present its conduct may be justified by a showing that no competitive injury resulted or, alternatively, that the discriminations are not unlawful if it could be shown that the differential treatment was only reflec.tive of the differences in its costs in dealing with the two types of customers.
1. Existence <Df Competition.
The unanimous conclusion of the Examiner, the Commission, and the Court of Appeals on this point was, as stated by the Court of. Appeals, that the variety and fabric stores, “operating in the same cities and in the same shopping area, often side by side, were competitors, purchasing from Simplicity at the same price and then at like prices retailing the identical product to substantially the same segment of the public.” 103 U. S. App. D. C., at 377, 258 F. 2d, at 677. Simplicity argues that “motivation” controls and that since the variety store sells for a profit and the fabric store for accommodation that the competition is minuscule. But the existence of competition does not depend on such motives. Regardless of the necessity the fabric stores find in the handling of patterns it does not remove their incentive to sell those on hand, especially when cash is tied up in keeping patterns on the shelves. The discriminatory terms under which they are obliged to handle them increase their losses. Furthermore, Simplicity not only takes advantage of the captive nature of the fabric stores in not granting them these advantages but compounds the damage by creating a sales outlet in the variety-stores through the granting of these substantial incentives to engage in the pattern business. Without such partial subsidization the variety stores might not. enter into the pattern trade at all.
Nor does it follow that the failure here to show specific injury to competition in patterns is inconsistent with a finding that competition in fact exists. It may be, as Simplicity argues, that the sale of patterns is minuscule in the over-all business of a variety store, but the same is true of thousands of other items. While the giving of discriminatory concessions to a variety store on any one isolated item might cause no injury to competition with a-fabric store in its over-all operation, that fact does not render nonexistent the actual competition between them in patterns. It remains, and, because' of the discriminatory concessions, causes further losses to the fabric store. As this Court said in Federal Trade Comm’n v. Morton Salt Co., 334 U. S. 37, 49 (1948),
“There are many articles in a grocery store that, considered separately, are comparatively small parts of a merchant’s stock. Congress intended to protect a merchant from competitive injury attributable to discriminatory prices on any or all goods sold in interstate commerce, whether the particular goods constitúted a major or minor portion of his stock. Since a grocery store consists of many comparatively small articles, there is no possible way effectively to protect a grocer .from discriminatory prices except by applying the prohibitions Qf the Act to each individual article in the store.”
2.' Application of the Justification Defenses of § 2 (b).
Simplicity contends that an absence of competitive injury constitutes a defense under the justification provisions of § 2 (b) and further that it should have been permitted, under that subsection, to dispel its discrimination in services and facilities by a showing of lower costs in its transactions with the variety stores. We agree with the Commission that the language of the Act, when considered in its entirety, will not support this construction.
Section 2 (á) makes unlawful price discriminations
“where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevént competition
This price discrimination provision is hedged with qualifications. An exception is made for price differentials “which make only due allowance for differences in the cost of manufacture, sale, or delivery.” Care was taken that price changes are not outlawed. where made in response to changing market conditions. Finally, § 2 (a) codifies the rule of United States v. Colgate & Co., 250 U. S. 300 (1919), protecting the right of a persQn in commerce to select his “own customers in bopa fide transactions and not in restraint of trade.”
Subsections (c), (d), and (e), on the other hand, unqualifiedly make unlawful certain business practices other than price discriminations. Subsection (c) applies to the payment or receipt of commissions or brokerage allowances “except for services rendered.” Subsection (d) prohibits the payment by a seller to a customer for any services or facilities furnished by the latter, unless “such payment ... is available on proportionally equal terms to all other [competing] customers.” Subsection (e), which as noted is the provision applicable in this case, makes it unlawful for a seller
“to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale . . .• by . . . furnishing . . . any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms.”
In terms, the proscriptions of these three subsections are absolute. Unlike § 2 (a), none of them requires, as proof of a prima facie violation, a showing that the illicit practice has had an injurious or destructive effect on com-' petition. Similarly, none has any built-in defensive matter, as does § 2 (a). Simplicity’s contentions boil down to an argument that the exculpatory provisions which Congress has made expressly applicable only to price discriminations are somehow included as “justifications” for discriminations in services or facilities by § 2 (b), which provides that
“Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the.burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.” (Emphasis added.)
We hold that the key word “justification” can be read no more broadly than to allow rebuttal of the respective offenses in one of the ways expressly made available by Congress. Thus; a discrimination in prices may be rebutted-by a showing under any of the § 2 (a) provisos, or under the § 2 (b) proviso — all of.which by their terms apply to price discriminations. On the other hand, the only escape Congress has provided for discriminations in services or. facilities is the permission to meet competition as found in the § 2 (b) proviso. We cannot supply what Congress has studiously omitted.
Simplicity’s arguments to the contrary are based essentially on the ground that it would be “bad law and bad economics” to make discriminations' unlawful even where they may be accounted for by cost differentials or where there is no competitive injury. Entirely aside from the fact that this Court is not in a position to review the economic wisdom of Congress, we cannot say that the legislative decision to treat price and other discriminations differently is without a rational basis. In allowing a “cost justification” for price discriminations and not for others, Congress could very well have felt .that sellers would be forced to confine their discriminatory practices to price differentials, where they could be more readily detected and where it would be much easier to make accurate comparisons with any alleged cost savings. Biddle Purchasing Co. v. Federal Trade Comm’n, 96 F. 2d 687, 692 (C. A. 2d Cir. 1938). And, with respect to the absence of competitive injury requirements, it suffices to say that the antitrust laws are not strangers to the policy of nipping potentially destructive practices before they reach full bloom. Cf. Klor’s, Inc., v. Broadway-Hale Stores, 359 U. S. 207 (1959).
Our conclusions are further confirmed by the historical setting of the Robinson-Patman amendments to § 2 of the Clayton Act. As originally worded in 1914 (38 Stat. 730), § 2 applied only to price discriminations, and then only where the effect of such discrimination was “to substantially lessen competition or tend to create a monopoly in. any line of commerce.” Furthermore, a proviso excepted price discriminations based on “differences in the . . . quantity of the commodity sold,” regardless of whether the differences in quantity resulted in corresponding cost differentials.
A lengthy investigation conducted in the 1930’s by the Federal Trade Commission disclosed that several large chain buyers were effectively avoiding § 2 by taking advantage of gaps in its coverage. Because of their'enormous purchasing power, these chains were able to exact price concessions, based on differences in quantity, which far exceeded any related cost savings to the seller. Consequently, the seller was forced to raise prices even further on smaller quantity lots in order to cover the concessions made to the large purchasers. Comparable competitive advantages were obtained by the large purchasers in several ways other than direct price concessions. Rebates were induced for “brokerage fees,” even though no brokerage services had been performed. “Advertising allowances” were paid by the sellers tó the large buyers in return for certain promotional services undertaken by the latter. Some sellers furnished special services or facilities to the chain buyers. Lacking the purchasing power to demand comparable advantages; the small independent stores were at a hbpeless competitive disadvantage.
The Robinson-Patman amendments were enacted to eliminate these inequities. The exception to price discriminations based on quantitative differences was limited to those making “only due allowance for differences in . . . cost.” As noted above, false brokerage- allow-_ anees and the paying for or furnishing of nonproportional services or facilities were banned outright. The. portion of § 2 (b) preceding the proviso, on which Simplicity relies, was inserted in the House bill for the sole purpose of laying down “directions with reference to procedure including a statement with respect to burden of proof.” It was clearly not intended. to have any independent substantive weight of its own.
We hold, therefore, that neither “cost-justification” nor an absence of competitive injury may constitute “justification” of a prima facie § 2 (e) violation. The judgment of the Court of Appeals must accordingly he reversed insofar as it set aside and remanded the Commission’s order and affirmed as to the remainder.
It is so ordered.
The complaint was in two counts, the first being under the Federal Trade Commission .Act. This count was dismissed. The second count, which is the only one before us, involves certain subsections of § 2 of the Clayton Act, 15 U. S. C. § 13. For ready reference we quote § 2 in its entirety:
“(a) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition Or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in'the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered: Provided, however, That the Federal Trade Commission may, after due investigation, and hearing to all interested parties, fix and establish quantity limits, and revise the same as it finds necessary, as to particular commodities or classes of commodities,, where it finds that available purchasers in greater quantities are so few as to render differentials on account thereof- unjustly discriminatory or promotive of monopoly in any line of commerce;, and -the foregoing shall then not be construed to-permit differentials- based on differences in quantities greater than those so fixe.d and established: And provided further, That nothing-herein contained shall prevent persons .engaged in selling goods, wares, or merchandise in commerce From - selecting their own customers inbona fide, transactions and not in .restraint of trade; And provided further, That nothing herein contained shall prevent price changes from time to time where in response to changing conditions affecting the market for or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods; obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.
“ (b) Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower-price or the furnishing of services or facilities to any purchaser o-r purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.
“(c) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything' of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party tu such transaction other than the person by whom such compensation is so granted or paid.
“(d) That it shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such com-' merce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering, for sale of any products or commodities manufactured, sold, or offered for sale by such person, •unless such, payment or consideration, is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities.
“(e) That it shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to thé furnishing of, any services- or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms.
“(f) That it shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section.”
Judge Washington dissented on the “cost-justification” issue, while Judge Burger was in dissent on the competitive injury question.
In dollar volume, Simplicity’s percentage-of-industry total is somewhat lower, due to the fact that its prices are among the lowest in the industry.
It should be noted that Simplicity has apparently acted entirely in good faith. While the services and facilities described in the body of the opinion are admittedly furnished free only to- the variety ■stores, Simplicity asserts that other services ánd facilities are furnished only to the smaller customers. These claimed services include: A staff of 12 young- ladies travels throughout the. country giving fashion shows and sewing demonstrations in schools,.-L-H Clubs and' the like. These demonstrations- are' coordinated through the local-fabric stores to assist the latter in pushing sales both of patterns and of fabric's. Large promotional posters, portraying fabrics and fashion trends, are furnished monthly to the fabric stores. “Flyers,” or brochures, designed, printed and distributed by Simplicity solely for the small merchant, tell him (in the words of Simplicity’s president) “what the proper sources of supply, are in'New York, what the trends are, how to trim his wiiidows, how to run certain aspects of his department and a great deal of other material.” A monthly publication called the “Simplicity Pattern Book” is sold through fabric stores at an annual loss to Simplicity of over $100,000. The publication is designed to “glamorize and dramatize for the consumer and for the merchant the textiles and trends throughout the country.”
These services and facilities are apparently available to the variety stores, but are not used by them because of their method of doing business. Thus, Simplicity claims that the fabric stores receive services and facilities, valued by Simplicity at more than $1,000,000 annually, which in fact if not in law are not used by the - variety stores. The parties did not explore, before the • Commission, the possibility that this tailoring of services and facilities to meet the different needs of two classes of customers in fact constituted “proportionally equal terms.” And, of course, this point was not raised in the Court of Appeals or in this Court. We note in passing, however, that the Commission has indicated a willingness to give a relatively broad scope to the-standard of proportional equality under §§ 2 (d) and 2 (e). See Lever Brothers Co., 50 F. T. C. 494, 512 (1953). (“[§ 2 (d)] does not prohibit a seller from paying for services of various types.” A “plan providing payment for promotional services and facilities . . . must be honest in its purpose and fair and reasonable in its application.”) See also Procter & Gamble Distributing Co., 50 F. T. C. 513 (1953); Colgate-Palmolive-Peet Co., 50 F. T. C. 525 (1953); Report of the Attorney General’s National Committee to Study the Antitrust Laws 189-190 (1955). Since the issue is not properly before us, we of course do not pass on it.
Simplicity -argues that the Examiner “affirmatively found an absence of competitive injury.” This view was apparently adopted by the Court of Appeals. 103 U. S. App. D. C., at 378, 258 F. 2d, at 678. We do not so read the record, however. What the Examiner said was that “there is no showing of competitive injury.” (Emphasis added.)
Subsection (f) is a corollary to §2 (a), making it unlawful “knowingly to induce or receive” a price discrimination barred by the latter. See Automatic Canteen Co. v. Federal Trade Comm’n, 346 U. S. 61 (1953).
Simplicity .concedes this, in effect, but argues that it should be allowed under §2 (b) to “justify” the §2 (e) violation by making an affirmative showing of absence of competitive injury.
In allowing a showing of “cost-justification” under §2 (b), the Court of Appeals negated any inference that it was thereby importing “§ 2 (a) criteria as matters of defense to a Section 2 (e) charge.” Rather, it held that “the justification to be shown under the first clause of § 2 (b) as to a § 2 (e) charge of discrimination in ‘facilities furnished’ to various customers, [would] depend upon the facts in a particular case.” 103 U. S. App. D. C., at 381, 258 F. 2d, at 681. (Italics in the original.) On this theory, the limits of the justification-which could be shown would be established by litigation, on a case-to-case basis.
See Standard Oil Co. v. Federal Trade Comm’n, 340 U. S. 231 (1951).
The Courts of Appeals, prior to this case, had uniformly rejected the argument that § 2 (e) violations were subject to a cost-justification defense or required a showing of adverse effect on competition. Elizabeth Arden, Inc., v. Federal Trade Comm’n, 156 F. 2d 132 (C. A. 2d Cir. 1946) (competitive injury); Corn Products Refining Co. v. Federal Trade Comm’n, 144 F. 2d 211, 219 (C. A. 7th Cir. 1944), aff’d on other grounds 324 U. S. 726 (competitive injury); Southgate Brokerage Co. v. Federal Trade Comm’n, 150 F. 2d 607, 610 (C. A. 4th Cir. 1945) (dictum as to competitive injury); Great Atlantic & Pacific Tea Co. v. Federal Trade Comm’n, 106 F. 2d 667 (C. A. 3d Cir. 1939) (dictum as to cost-justification); Oliver Bros., Inc., v. Federal Trade Comm’n, 102 F. 2d 763, 767 (C. A. 4th Cir. 1939) (dictum as to competitive injury). It does not appear that any Court of Appeals had previously been asked to decide whether an absence of competitive injury could constitute a “justification” under § 2 (b).
Compare the Report of the Attorney General’s National Committee to Study the Antitrust Laws (1955). The Committee recognized that as of that date subsections (c), (d) and (e) had been uniformly interpreted ’ as not requiring a showing of competitive injury, and as not allowing a cost-justification defense. Pp. 187-193. It expressed disagreement with the desirability of-this result, in view of what it deemed the “broader antitrust objectives,” and recommended that § 2 (c) be changed by legislation and § 2 (d) and (e) by “interpretive reform.”. P. 193.
During congressional debates on the bill, there were continual references to the subsection (c), (d) and (e) practices as “secret” discriminations. See, e. g., 80 Cong. Rec. 8126, 8127, 8132, 8135, 8137, 8226.
Compare Northern Pacific R. Co. v. United States, 356 U. S. 1 (1958); United States v. Socony-Vacuum Oil Co., 310 U. S. 150 (1940), which contain examples of per se violations under the Sherman Act. It is not without significance that earlier versions of both the House and Senate bills would have outlawed even price discriminations without regard to their effect upon competition. H. R. 8442, 74th Cong., 1st Sess.; S. 3154, 74th Cong., 1st Sess.
This language was retained in § 2 (a) under the Robinson-Patman Act amendment, and .the following was added, “or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.”
Final Report on the Chain-Store Investigation, S. Doc. No. 4, 74th Cong., 1st Sess.
H. R. Rep. No. 2287, 74th Cong., 2d Sess., p. 16.
As reported out of Committee, the equivalent of § 2 (b) (which was § 2 (e) in the House bill) applied only to price discriminations. During the floor debate, Congressman McLaughlin introduced an amendment which would add “or services or facilities furnished” at appropriate places in the subsection. He said, “Mr. Chairman, this is a committee' amendment agreed to unanimously by : the committee.- ... It simply allows a..seller to meet not only competition in price of other competitors\but also competition in services and facilities furnished.” 80 Cong. Rec. 8225. The amendment was adopted without further comineiit. Throughout the debate, what reference there, was to this subsection (other than to .the proviso) was to the effect that it was a “procedural” or “burden of proof” provision. See, e. g., 80 Cong. Rec. 8110, 9414, 9418. Congressman Patman, referring to it as a “burden of proof” provision, said “Let me analyze that for you. What does that mean? It means exactly the rule.of law today. It is a restatement of existing law. So far as I am concerned you can strike it out.- It makes no difference.” 80 Cong. Rec. 8231. This statement, coming from one of the authors of the bill; makes it clear beyond peradventure that the provision in question was not intended to operate as .a source of substantive defenses. See also Automatic Canteen Co. v. Federal Trade Comm’n, supra, 346 U. S., at 78.
The history of the Senate bill is not helpful. As reported out of .Committee,-it contained neither a provision comparable to § 2 (b) nor one comparable to § 2 (e). S. Rep. No. 1502, 74th Cong., 2d Sess. A provision identical to § 2 (b) was adopted as a floor amendment at a time when the bill did not in terms even- cover the furnishing of services and facilities. 80 Cong. Rec. 6435-6436. The short debate on the amendment is not enlightening.
While both of these questions have been presented to us in terms of the “justification” clause of §2(b), we are equally convinced that the competitive injury and cost-differential clauses of § 2 (a) cannot be read directly, into § 2 (e). Elizabeth Arden, Inc., v. Federal Trade Comm’n, supra, note 10; Corn Products Refining Co. v. Federal Trade Comm’n, supra, note 10; Great Atlantic & Pacific Tea Co. v. Federal Trade Comm’n, supra, note 10. It is true that, in reference to the cost-differential clause, we have said, “Time and again there was recognition in Congress of a-freedom to adopt and pass on to buyers the benefits of more economical processes.” Automatic Canteen Co. v. Federal Trade Comm’n, supra, 346 U. S., at 72. But the contexts of the statements referred to show that- the benefits Were to. be made available in price differentials or not at all. See, e. g., 80 Cong. Rec. 8106-8107, 8111-8112, 8114, 8127-8128, 8137, 9415; H. R. Rep. No. 2287, 74th Cong., 2d Sess. See also notes 12 and 13, supra.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
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songer_appel1_1_3
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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.
CHESAPEAKE BAY FOUNDATION, INC.; Natural Resources Defense Council, Inc., Plaintiffs-Appellees, v. GWALTNEY OF SMITHFIELD, LTD., Defendant-Appellant.
No. 88-1317.
United States Court of Appeals, Fourth Circuit.
Argued March 8, 1989.
Decided Nov. 30, 1989.
E. Barrett Prettyman, Jr. (Patrick M. Raher, John G. Roberts, Jr., Catherine J. LaCroix, Hogan & Hartson, Washington, D.C., Anthony F. Troy, George A. Somer-ville, Mays & Valentine, Richmond, Va., on brief), for defendant-appellant.
James Kevin Thornton (James F. Simon, Natural Resources Defense Council, Inc., Patrick M. McSweeney, McSweeney, Burtch & Crump, Richmond, Va., Ann Powers, Chesapeake Bay Foundation, Inc., Annapolis, Md., on brief), for plaintiffs-appel-lees.
Before RUSSELL and SPROUSE, Circuit Judges, and KAUFMAN, Senior District Court Judge for the District of Maryland, sitting by designation.
SPROUSE, Circuit Judge:
This case, a frequent visitor in this court, continues to present serious issues concerning the interpretation of § 505 of the Clean Water Act (the Act). Gwaltney of Smith-field, Ltd. (Gwaltney), appeals the finding of the district court that plaintiffs-appellees Chesapeake Bay Foundation, Inc. (CBF), and Natural Resources Defense Council, Inc. (NRDC), proved ongoing violations by Gwaltney at the time suit was brought. Gwaltney also raises standing and mootness objections to this action. We affirm in part and reverse in part.
I
Facts and Procedural History
The original action was brought by CBF under the citizen suit provisions of 33 U.S.C. § 1365 (§ 505 of the Act). CBF based its claims on violations by Gwaltney of its National Pollutant Discharge Elimination System (NPDES) permit, and requested both injunctive relief and civil penalties under 33 U.S.C. §§ 1365(a) and 1319(d) (§§ 505(a) and 309(d) of the Act). The district court found that CBF had standing to bring the suit, that the court had subject matter jurisdiction, and that Gwaltney was liable for its violations. Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd., 611 F.Supp. 1542 (E.D. Va.1985). Using the Environmental Protection Agency Civil Penalty Policy as a guideline, the court imposed upon Gwalt-ney a civil penalty of $1,285,322, with interest, of which $289,822 was for violations of Gwaltney’s total Kjeldahl nitrogen (TEN) limit, and $995,500 was for violations of the chlorine limit. Id. at 1565.
Gwaltney appealed to this court, challenging the district court’s subject matter jurisdiction and its method of calculating penalties. The facts affecting the first issue were largely undisputed, but the parties disagreed on the application of the statute to the facts. Gwaltney reported more than 150 violations of its NPDES permit between 1981 and 1984, the last violation occurring on May 15, 1984. The two environmental groups had sent notice of intent to sue in February 1984, and filed suit on June 15, 1984, one month after Gwaltney’s last recorded violation. The Act permits citizen suits against any person “who is alleged to be in violation” of NPDES permit limitations, 33 U.S.C. § 1365(a); Gwaltney contended this meant there must be continuing violations at the time of suit in order for the court to have jurisdiction. We found that the statute, although ambiguous, also conferred jurisdiction for citizen suits based on wholly past violations, and so affirmed the district court without reaching the question of whether CBF had made a good-faith allegation of ongoing violations. Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 791 F.2d 304, 308 n. 9, 316-17 (4th Cir.1986). We also affirmed the district court with regard to its methodology for assessing penalties.
The United States Supreme Court granted certiorari on the issue of jurisdiction in order to resolve a split among the circuits and subsequently held that § 1365(a) does not permit citizen suits for wholly past violations. It remanded the case to us to consider whether CBF’s complaint had made a good-faith allegation of ongoing violations, holding that such allegation would be sufficient to establish subject matter jurisdiction. Gwaltney of Smith-field v. Chesapeake Bay Foundation, 484 U.S. 49, 108 S.Ct. 376, 384-85, 98 L.Ed.2d 306 (1987). The district court, in its initial consideration, had suggested as an alternative holding that CBF had made sufficient good faith allegations of continuing violations to establish jurisdiction. 611 F.Supp. at 1549 n. 8. On remand from the Supreme Court, we held that this finding was not clearly erroneous, and remanded the case to the district court “for further findings as to whether, on the merits, plaintiffs proved at trial an ongoing violation.” Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171 (4th Cir.1988).
After remand to the district court, Gwalt-ney again challenged the subject matter jurisdiction of the court, moving to dismiss the case as moot and, alternatively, to dismiss because the plaintiffs did not have standing. Gwaltney also asserted that even if the court did have jurisdiction to hear the ease, it did not have jurisdiction as to Gwaltney’s chlorine violations, because no reasonable person could in good faith allege that the chlorine violations were ongoing at the time of trial. Finally, Gwalt-ney asserted that CBF had failed to meet its burden of proving that there were ongoing violations, even of TKN, at the time of trial.
The district court interpreted our mandate to foreclose any consideration of mootness, standing, or severability of the chlorine and TKN violations, instructing it only to determine whether CBF had proved ongoing violations. Finding that CBF had done so, the court reinstated its original judgment of $1,285,322 in civil penalties. Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 688 F.Supp. 1078, 1080 (E.D.Va.1988).
Gwaltney now appeals to this court, claiming there was insufficient evidence to support the district court’s finding of ongoing violations. Gwaltney claims that even if there was sufficient evidence the district court erred in reinstating penalties for chlorine as well as TKN violations. Gwaltney also appeals on the standing and mootness issues. Normally, because they are jurisdictional, we would consider the standing and mootness questions first. In this case, however, the jurisdictional issues are intertwined with the finding of ongoing violations; therefore, we address the substantive dispute first.
II
Whether There Was An Ongoing Violation
Gwaltney asserts that the district court erred in finding that there was an ongoing violation at the time suit was brought. As we now know, essentially the last violation occurred on May 15, 1984. Gwaltney claims that at the remand hearing the district court should have considered the evidence of its compliance since that time. Gwaltney also asserts that there was not sufficient evidence adduced at the time of trial to permit a finding of ongoing violation.
In its opinion in this case, the Supreme Court stated that, at trial, the citizen-plaintiff must prove its allegations of ongoing violation in order to prevail. Id. 108 S.Ct. at 386. The Court defined a § 1365 ongoing violation to be “a reasonable likelihood that a past polluter will continue to pollute in the future.” 108 S.Ct. 381. In our remand to the district court, we instructed that the citizen-plaintiffs could prove an ongoing violation
either (1) by proving violations that continue on or after the date the complaint is filed, or (2) by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations. Intermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition ....
.... [T]he district court may wish to consider whether remedial actions were taken to cure violations, the ex ante probability that such remedial measures would be effective, and any other evidence presented during the proceedings that bears on whether the risk of defendant’s continued violation had been completely eradicated when citizen-plaintiffs filed suit.
844 F.2d at 171-72.
There is no doubt that Gwaltney was a past polluter. Its discharge monitoring reports revealed violations in almost every month from the time Gwaltney purchased the plant in 1981 until one month before suit was filed. The question is whether, at the time suit was brought, there was a reasonable likelihood that this past polluter would continue to pollute in the future.
Gwaltney points to its record of near-perfect compliance after May 15, 1984 as conclusive evidence that there was no ongoing violation at the time of trial. However, the proper point from which to assess the likelihood of continuing violations is not the present, with its advantage of hindsight, but the time of the original suit. That is, did CBF carry its burden at trial of proving ongoing violations, either by proving actual violations after the date of filing suit, or by proving a reasonable likelihood that intermittent or sporadic violations would recur at Gwaltney?
The testimony at trial showed the following. Gwaltney purchased the meat processing plant in October of 1981. In June of 1982, it hired a consulting engineer to design modifications so the wastewater treatment facility would adequately treat the plant waste. After various delays, a final plan was approved, and the modifications were completed in October of 1983. Nevertheless, violations of Gwaltney’s TKN permit limitation occurred during the winter of 1983-84.
CBF sent notice of intention to sue in February 1984. The last violation of Gwaltney’s permit occurred on May 15, 1984. CBF filed suit on June 15, 1984. Trial was held on December 19, 1984. CBF put on as its only witness Dr. Bruce A. Bell. Gwaltney put on, inter alia, the testimony of Mr. J. Willis Sneed. Both Dr. Bell and Mr. Sneed testified that a major factor leading to TKN violations is low water temperatures. Dr. Bell’s testimony included the following:
Q. Do you have an opinion based upon your review of the records in this case and your visit to the Gwaltney facility, with regard to whether the Gwaltney facility will meet T.K.N. limits this winter?
A. Assuming we have a normally cold winter, I think it is unlikely that they will.
Q. What is the basis for those doubts? A. Primarily the question of waste water temperature. They are still using surface aerators, which tend to act to cool the system. And the larger of the two anaerobic lagoons being used has not at this time, or as of a week ago, formed a grease cover over most of the lagoon. And that grease cover is needed to act as an insulating blanket during the cold temperatures.
Mr. Sneed testified that the primary cause of the TKN violations the previous winter had been the lack of an adequate grease cover on the anaerobic lagoon. At another point he testified as follows:
Q. Mr. Sneed, is adequate grease cover important to proper winter T.K.N. treatment of the plant?
A. On the anaerobic lagoon, yes.
Q. You were with us last week when we toured the facility, were you not? A. Yes.
Q. Isn’t it in fact true at that point in time, in December, the lower anaerobic lagoon did not have adequate grease cover?
A. Yes. Earlier in the summer time that lagoon was covered with grease. And that was what we expected would happen.
Quite frankly we were very surprised that that grease cover has deteriorated to this point, and we have since taken steps to accelerate the formation of that grease cover.
Q. Given the importance, as you mentioned before, of maintaining adequate grease cover, isn’t there some doubt in your mind as to whether the Gwaltney facility would be in compliance with T.K.N. limits this winter?
A. Yes, we have.
Q. Isn’t there some doubt? That is all I am asking.
A. Yes, Sir.
I think there is some doubt every year that you would expect the plant to go out of compliance at some time.
Thus, at the time of trial, there had been no violations at Gwaltney during the previous summer months, but there had been TKN violations during the previous winter due to an inadequate grease cover. The trial was held on the threshold of another winter, the parties’ witnesses agreed that TKN violations were more likely to occur in the winter, there was testimony from both parties’ witnesses that the grease cover on the anaerobic lagoon was at the time inadequate to protect against normal winter temperatures, and both witnesses expressed doubt whether Gwaltney could stay in compliance with its TKN limitation through the winter.
There was other evidence adduced at the trial that would indicate recurring violations of the TKN limitation were likely. Dr. Bell expressed concerns about the configuration of the anaerobic lagoon, the use of surface aerators, and the unknown effect of storm water on the system. Dr. Bell and a Gwaltney witness, Mr. Terry L. Rettig, testified that there were problems with the laboratory procedures used at Gwaltney, which would have an adverse effect on Gwaltney’s ability to properly assess the operational needs of its treatment facility. There also was evidence that proper wastewater treatment did not receive a high priority at Gwaltney.
Given all of the above, we think that “a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations.” We therefore affirm the district court in so finding.
Ill
Standing
The Supreme Court set forth the elements of Article III standing in Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984): “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Gwaltney urges that CBF cannot demonstrate that its injury is “likely to be redressed by the requested relief.” It argues that, since its permit violations had ceased at the time suit was filed, the only remedy available to CBF was an assessment of civil penalties against Gwalt-ney. Since civil penalties are paid into the United States Treasury, Gwaltney urges that such payments could not redress any injury to CBF. However, we already have that payments are to a citizen-plaintiff’s injury and are therefore likely to redress that injury. SiClub v. Simkins Indus., Inc., 847 1109, reh’g & reh’g en banc denied Cir.1988), cert. denied, — U.S.-, S.Ct. 3185, 105 L.Ed.2d 694 (1989). Simkins involved a citizen suit against a polluter for failing to sample its discharge file quarterly reports as required by its NPDES permit. In the appeal from judgment for the citizens, we said:
[T]he judicial relief even if payable only to the United States Department of the Treasury, is causally connected to a citizen-plaintiff’s injury. Such penalties can be an important deterrence against future violations. [Plaintiffs] must show actual or threatened injury traceable to the wrong and a particularized interest in deterring violations of the Act, but once they have done so, the imposition of civil penalties is causal-connected to the injury.
Id. at 1113 (footnote omitted).
Gwaltney argues that the case sub judi-ce is factually distinguishable from Sim-kins because here the pollution occurred in the past while in Simkins the violation was an ongoing one. The attempted distinction fails, however, because the district court here on remand found, and we affirm, that Gwaltney’s violations were ongoing. Gwaltney argues alternatively that Sim-kins was wrongly decided and urges us to depart from its holding. This panel, of course, is not at liberty to casually deviate from our established precedent. See, e.g., Caldwell v. Ogden Sea Transp., Inc., 618 F.2d 1037, 1041 (4th Cir.1980); Doe v. Charleston Area Medical Center, Inc., 529 F.2d 638, 642 (4th Cir.1975). Furthermore, the cases Gwaltney cites as support for its position do not deal with statutes analogous to the Clean Water Act, in which Congress essentially has deputized- citizens to represent the public interest as private attorneys general. See Gwaltney, 791 F.2d at 308.
IV
Mootness
Although this jurisdictional issue was not raised in the original trial or on appeal from that judgment and therefore was not specifically included in our order of remand, mootness may be raised at any stage of the proceedings. See United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950); Southern Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 514, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Moreover, since the record in this respect is fully developed, nothing would be gained by another remand for an initial decision by the district court on this issue. We therefore consider Gwaltney’s mootness contention and conclude that the case is not moot.
The Supreme Court’s mootness doctrine is well summarized in Cedar Coal Co. v. United Mine Workers, 560 F.2d 1153 (4th Cir.1977), cert. denied, 434 U.S. 1047, 98 5.Ct. 893, 54 L.Ed.2d 798 (1978).
[Cjourts are not empowered to decide moot questions or abstract propositions, but the exercise of judicial power depends upon the existence of a case or controversy. The suit must be definite and concrete, touching the legal relations of parties having adverse legal interests and be a real and substantial controversy admitting of specific relief through a decree of conclusive character as distinguished from an opinion of what the law would be upon a hypothetical statement of facts.
Id. at 1162 (paraphrasing North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)).
The question here is whether litigation over penalties imposed for past violations which are linked with ongoing violations presents a live case or controversy, even though primary subject matter jurisdiction is based on alleged continuing violations. In our view, the penalty factor keeps the controversy alive between plaintiffs and defendants in a citizen suit, even though the defendant has come into compliance and even though the ultimate judicial remedy is the imposition of civil penalties assessed for past acts of pollution. This conclusion follows from the strue~ure of both § 1319-authorizing actions by the government against polluters-and § 1365-permitting citizen suits.
It well established that the simple ces- sation of illegal activity upon the filing of a complaint does not moot a case. See, e.g., City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). Under the Clean Water Act, civil penalties attach as of the date a permit violation occurs. Liability is fixed by the happening of an event (dis- charge of effluent with an excessive bur- den of pollution) that occurred in the past. Thus, the initiation of § 1319 actions by the government can be based on wholly past violations, so that a suit seeking penalties is intrinsically incapable' of being rendered moot by the polluter’s corrective actions. See, for example, United States v. ITT Rayonier, Inc., 627 F.2d 996, 1000 (9th Cir.1980), where the Ninth Circuit held that when the Environmental Protection Agen- cy brings suit for injunctive relief and civil penalties under the Act, an appeal is not mooted even if injunctive relief becomes inappropriate.
A similarrationale governs our consider- ation of putative mootness arguably brought on by corrective action after a § 1365 citizen suit has been initiated. When the Supreme Court concluded in its Gwaltney decision that § 1365 permits citi- zens’ actions against polluters while there are ongoing violations, the Court effective- ly approved the assessment of penalties based on past violations (the only possible $10,000 per basis for assessing a penalty). Assuming, then, proof of an ongoing violation, a citizen action, like a government action, cannot become moot once there is assessment of civil penalties, so long as the penalties are for past violations that were part of or which contiguously preceded the ongoing violations.
The Court in Gwaltney instructed that citizen suits are unavailable for violations “wholly unconnected with any present ... wrongdoing.” 108 S.Ct. at 386. However, if the plaintiffs prove an ongoing violation at trial, the violations are related to present wrongdoing. Section 1319(d) of the Act states that any person who violates a permit condition shall be subject to a civil penalty. This language coupled with § 1365(a) indicates that, once an ongoing violation is shown, the court is virtually obligated to assess penalties. Stoddard v. Western Carolina Regional Sewer Auth., 784 F.2d 1200, 1208 (4th Cir.1986).
We think the Supreme Court’s dicta on mootness in its Gwaltney opinion supports our view. There the Court indicated that the issue of a permit violation may become moot if a defendant
demonstrate^] that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. Mootness doctrine thus protects defendants from the maintenance of suit under the Clean [Water] Act based solely on violations wholly unconnected to any present or future wrongdoing, while it also protects plaintiffs from defendants who seek to evade sanction by predictable protestations of repentance and reform.
108 S.Ct. at 386 (emphasis in original; quotation marks and citations omitted). The burden on the defendant — to prove that the issue has become moot because of corrective action it has taken — is a heavy one. Under the rationale of the Gwaltney dicta, whether corrective action moots the issue of an ongoing violation vel non is a factual question. Conceptually, a myriad of factual questions could be posed in this context. See Note, Clean Water Citizen Suits after Gwaltney: Applying Mootness Principles in Private Enforcement Actions, 4 Fla.St. U.L.Rev. 143, 158-59 (1988) (authored by Reed Benson). Here, however, we need not speculate — the district court has found as a matter of fact that Gwaltney’s violations were ongoing as that term is explained in the Supreme Court’s Gwaltney decision. As we have explained, that finding is not clearly erroneous, and it shapes the dimensions of this case on appeal. The district court’s judgment was based on its conclusion that Gwaltney was guilty of an ongoing violation at the time suit was filed, and the penalty levied against it was based, as it necessarily must be, on past violations. It is both the ongoing nature of the violation and CBF’s interest as a private attorney general seeking a remedy for that violation that presents a live controversy in the Article III context.
V
Bifurcation of the TKN and Chlorine Violations
Our remand instructed the district court to determine whether there had been an ongoing violation at Gwaltney at the time of trial. At the remand hearing, Gwaltney urged that the court should make separate determinations for the TKN and chlorine violations. The court, interpreting our remand quite strictly, deemed it was permitted only to determine whether there was an ongoing violation; finding that there was, the court then reinstated the original judgment, which was based on both TKN and chlorine violations. We reverse.
It is “absolutely clear” that there were no ongoing chlorine violations at the time this suit was brought. Gwaltney had installed new chlorination equipment in March of 1982, had made further modifications over the summer, and had experienced no violations of its chlorine limitations since October of 1982. Clearly Gwalt-ney had abated its chlorine problems by the time CBF filed suit in June of 1984. Had Gwaltney violated no other permit parameters, the court would have had no subject matter jurisdiction over this suit. Gwalt-ney, 108 S.Ct. at 384-85.
However, Gwaltney did violate other parameters, including the TKN violations which were ongoing at the time suit was filed, and CBF seeks to use that fact to justify imposition of penalties for the chlorine violations. CBF contends that the jurisdictional requirement of § 1365 refers to finding an ongoing violation of the permit; having done so, the court may then impose penalties for any past violation of any permit parameter. We do not think the statutory language can support that position. Section 1365(a) permits citizen suits against persons alleged to be in violation of “an effluent standard or limitation.” Penalties under § 1319(d) may be assessed for violations of “any permit condition or limitation.” The entire structure of the Clean Water Act and regulations involves identifying specific pollutants and setting a permit limit for each pollutant of concern. It thus makes sense within this scheme to view each parameter separately for purposes both of determining ongoing violation and of assessing penalties.
CBF’s theory also runs against the reasoning of the Supreme Court in finding that there must be an ongoing violation to create subject-matter jurisdiction. If Congress wished to permit citizen suits only when a discharger fails to abate a problem and the government fails to take enforcement action, see 108 S.Ct. at 382-83, then it would make little sense to permit penalties for wholly past violations of one parameter simply because there are ongoing violations of another parameter. The chlorine and TKN problems were due to distinct equipment and operational failures, and were corrected by distinct engineering solutions. While it was questionable at the time of suit whether Gwaltney had corrected its TKN violations, it was clear the company had abated its chlorine violations.
We therefore hold that the district court had no jurisdiction to impose penalties for Gwaltney’s wholly past chlorine violations. We vacate the judgment for $1,285,322 and remand for the court to enter judgment against Gwaltney in the amount of $289,-822 — the amount attributable to TKN violations — with interest.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.
. Throughout this opinion, “CBF" will refer to both CBF and NRDC.
. The district court did not grant the injunction, nor did its opinion give a rationale for not doing so. However, in a later proceeding, Judge Merhige explained that he was reluctant to enjoin people to do what the law requires them to do.
. Gwaltney exceeded its monthly average limitation for TKN in September 1985, apparently because of problem conditions resulting from a hurricane. Gwaltney claims the violation was "permissible" under 40 C.F.R. 122.42(n).
. The history of violations at the location predated Gwaltney. Gwaltney acquired the plant from ITT-Gwaltney, which had committed numerous violations of its NPDES permit in 1980 and 1981. Gwaltney took over the obligations of the NPDES permit knowing that there were problems with the wastewater treatment system.
. Note that, with a finding of ongoing violations, the district court could in its discretion grant an injunction. We do not read § 1365(a), however, to permit assessment of civil penalties only if the court also decides to enjoin the defendant. The latter remedy subjects the defendant to the possibility of criminal contempt. As was true in this case, a court might find such a harsh remedy unwarranted, at the same time believing the deterrent value of a civil penalty assessment to be justified.
. At the time of assessment of penalties in the case, the statute stated, "Any person who violates ... any permit condition or limitation ... shall be subject to a civil penalty not to exceed day of such violation.” 33 U.S.C. § 1319(d). The statute has been amended to allow up to $25,000 per day.
. In 1987, Congress amended § 1319. Rather than allowing penalties of "$10,000 per day of such violation", the statute now allows "$25,000 per day for each violation.” [Emphasis supplied.] Congress also added the provision that, "For purposes of this subsection, a single operational upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation." This language indicates that Congress, at least as of 1987, intended that non-upset violations be treated on a parameter-by-parameter basis.
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_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Appellee, v. Paul FERRARA, Appellant.
Nos. 432-433, Dockets 30455-30456.
United States Court of Appeals Second Circuit.
Argued April 20, 1967.
Decided May 8, 1967.
Joshua N. Koplovitz, New York City (Anthony F. Marra, New York City, on the brief), for appellant.
Michael W. Mitchell, New York City (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, Pierre N. Leval and Frederick F. Green-man, Jr., New York City, of counsel), for appellee.
Before LUMBARD, Chief Judge, and KAUFMAN and HAYS, Circuit Judges.
HAYS, Circuit Judge:
Appellant Ferrara was convicted by jury verdict in the United States District Court for the Southern District of New York of having violated and conspired to violate the federal naroctics laws, 21 U.S. C. §§ 173, 174; 26 U.S.C. § 4705(a).
While the jury was deliberating on the charges against him appellant and a codefendant became fugitives. Appellant was not apprehended until nearly six months later. He pleaded guilty to a charge of contempt of court arising out of his flight. He was sentenced to twelve years imprisonment on the narcotics convictions and was given one year on the contempt charge to be served after completion of his sentence on the narcotics conviction.
At the trial in June 1965 the government introduced portions of a question and answer statement taken from appellant after his arrest in which he confessed his participation in the sale of narcotics. The trial judge conducted a voir dire hearing out of the presence of the jury and concluded that the statement was not obtained under duress or coercion and was therefore admissible. On the voir dire a federal agent testified he had told appellant “if he cooperated with the United States [Attorney] I felt sure he would get out on reduced^bail.” Ferrara argues that the agent’s “promise” renders his confession involuntary as a matter of law.
Ferrara relies on Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). The Bram opinion cites with approval the statement in an English textbook that a confession is not voluntary if “obtained by any direct or implied promises, however slight”. That language has never been applied with the wooden literalness urged upon us by appellant. The Supreme Court has consistently made clear that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of “law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined * * Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961); see Haynes v. State of Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), quoting Lynumn v. State of Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963).
There can be no doubt in the present case that defendant’s statement was voluntary. Before the interview began the Assistant United States Attorney informed Ferrara, who was not uninitiated in the criminal law and who had two previous convictions, of all his rights, including his right to counsel and his right to remain silent. He was not subjected to any protracted interrogation nor was he threatened in any way. We hold that the agent’s comment was not the kind of inducement or promise that would, by itself, make the confession involuntary.
Appellant also contends that the trial judge erred in instructing the jury concerning the permissible statutory inference of 21 U.S.C. § 174 (set out in full in footnote 1, supra). The court’s initial charge on this question involved the substantive count against appellant’s codefendant, and correctly stated that under Section 174 “in the absence of a satisfactory explanation” possession of narcotics “permits the inference that the heroin was imported contrary to law, and a further inference that the person in possession had knowledge of such unlawful importation.” However, in dealing with count three of the indictment which charged both defendants with having violated Section 174, the court said:
“You remember what I told you the law provides with regard to that. If you are in possession, then unless you satisfactorily explain the possession, those elements [illegal importation and knowledge] have been met by the statutory presumption * * * which I read you not long ago.”
Appellant concedes that no objection was taken to this second charge but argues that the reference to a presumption constitutes plain error which we may notice under Fed.R.Crim.P. 52(b).
We hold that the charge taken as a whole was not plainly erroneous. The second charge, whatever its failings, referred to the earlier correct charge. In a later charge the jury was instructed that it must find that Ferrara had constructive possession of the heroin before it could “apply that statute with regard to inferences that the heroin was unlawfully imported or that Ferrara had knowledge of the unlawful importation.” The charge repeatedly referred to the government’s burden of establishing guilt beyond a reasonable doubt. Finally it must be emphasized that the theory of Ferrara’s defense did not raise the issue of his knowledge of illegal importation (see United States v. Aiken, 373 F.2d 294, 299 (2d Cir. 1967)). United States v. Hernandez, 361 F.2d 446 (2d Cir. 1966).
We have examined appellant’s other claims of error at the trial and find them to be without substance.
On the other hand, we hold that appellant is correct in his contention that his one year sentence for criminal contempt should be reduced. In Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629 (1966) the Supreme Court ruled that “sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial or waiver thereof.” Defendant did not, as the government argues, waive his right to a jury trial by pleading guilty to the contempt charge, since at the time of his plea Cheff v. Schnackenberg, the case which established his right, had not yet been decided. Indeed, the record discloses that before Ferrara pleaded guilty counsel informed him that he had a “right to have a hearing without a jury to determine whether he was in criminal contempt.” His guilty plea cannot be regarded as an intentional relinquishment of a known right. See, e. g., Johnson v. Zerbst, 304 U.S. 458, 461, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
This court has applied the rule of Cheff v. Schnackenberg retroactively to a case that was on appeal at the time Cheff was decided. See United States v. Harris, 367 F.2d 826 (2d Cir. 1966), cert. denied, 385 U.S. 1010, 87 S.Ct. 718, 17 L.Ed.2d 547 (1967). Exercising the “peculiar power of the federal courts to revise sentences in contempt cases” (Id. at 827, quoting Cheff v. Schnackenberg, supra, 384 U.S. at 380, 86 S.Ct. 1523) we reduce the sentence to six months.
The sentence on the contempt charge is reduced to six months and the judgments of conviction are affirmed.
. § 173. Importation of narcotic drugs prohibited; exceptions; crude opium for manufacture of heroin; forfeitures.
It is unlawful to import or bring any narcotic drug into the United States or any territory under its control or jurisdiction * * *.
§ 174. Same; penalty; evidence. Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. For a second or subsequent offense (as determined under section 7237(c) of the Internal Revenue Code of 1954), the offender shall be imprisoned not less than ten or more than forty years and, in addition, may be fined not more than $20,000.
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.
. § 4705. Order forms.
(a) General Requirement.
It shah be unlawful for any person to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate.
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_respond2_4_2
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.
Alicia G. GARCIA, Plaintiff-Appellant, v. CITY OF ABILENE, et al., Defendants-Appellees.
No. 89-1372
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Dec. 21, 1989.
Gilbert Rodriguez, William Kimble, West Texas Legal Services, Abilene, Tex., for plaintiff-appellant.
Claudia Clinton, Harvey Cargill, Jr., City Attys., Abilene, Tex., for defendants-appel-lees.
Before WILLIAMS, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:
Mrs. Alicia Garcia filed suit under 42 U.S.C. § 1983 against the City of Abilene and Judge Phillip Wetherbee, an Abilene municipal court judge, alleging that the City of Abilene’s fine collection system was unconstitutional and seeking injunctive relief, monetary damages, and attorney’s fees. The district court directed a verdict against Mrs. Garcia. We affirm.
I
On October 9, 1986, a city official issued a citation to Mrs. Garcia for failure to restrain her dog. Mrs. Garcia promised to appear in Abilene Municipal Court in regard to the citation within 10 days. When Mrs. Garcia did not appear, the city assessed an additional citation and fine for failure to appear. On November 17, 1986, Mrs. Garcia appeared and pleaded guilty to the failure to restrain her dog citation. Judge Wetherbee dismissed the failure to appear citation because Mrs. Garcia’s mother and husband had died in early November. Mrs. Garcia signed a continuance agreement on the payment of her $12 fine until December 5, 1986. The continuance agreement stated that not appearing on December 5 would subject her to arrest and failure to appear charges.
On December 5, 1986, Mrs. Garcia again failed to appear. When she appeared on December 9, 1986, Judge Wetherbee dismissed the second failure to appear citation and allowed Mrs. Garcia to sign a second continuance agreement on the $12 fine until January 9, 1987. She failed to appear on January 9 and received a third failure to appear citation. On January 13, 1987, the municipal court issued a capias pro fine arrest warrant for Mrs. Garcia based upon her failure to either pay the $12.00 fine or appear and assert some excuse. Mrs. Garcia was notified by telephone of the warrant that morning and appeared later that day. When she appeared Judge Wetherbee apparently told her that she could plead guilty and pay the fine, which was $32.00 at that time, or plead not guilty and have a jury trial. Mrs. Garcia chose to plead not guilty to the failure to appear charge, a class C misdemeanor, Tex.Penal Code Ann. § 38.11(e) (Vernon 1989), which is a fine only offense under Texas law, Tex.Penal Code Ann. § 12.23 (Vernon 1974).
The failure to appear charge was tried to a jury on February 5, 1987. The jury found her guilty and assessed a fine and costs totaling $102. The court set an installment plan of $25 per month pursuant to Tex.Crim.Proc.Code Ann. art. 45.06 (Vernon Supp.1989). On March 5, 1987, Mrs. Garcia told the court that she could not pay the first $25.00 installment. She then signed another continuance agreement promising to appear on March 20,1987, and let the court know when she could pay. She again failed to appear. A fourth citation for failure to appear was issued and, because of her default in the payment of the $102 without appearing in court to explain the default, a warrant for her arrest was issued.
Although the City of Abilene never arrested and incarcerated Mrs. Garcia, she filed suit under 42 U.S.C. § 1983 in district court against the City of Abilene and Judge Wetherbee seeking injunctive relief, monetary damages, and attorney’s fees for violation of her constitutional rights. Mrs. Garcia alleged that the City of Abilene unconstitutionally jailed indigent defendants because of their inability to pay fines. She also asserted that she should have been provided counsel at her trial. Originally, Mrs. Garcia filed suit as a class action, but the district court refused to certify the case as a class action because Mrs. Garcia did not comply with Fed.R.Civ.P. 23. A trial was held before the district court on March 20, 1989. During trial Mrs. Garcia withdrew any claim against Judge Wetherbee for damages. After hearing the testimony of Judge Wetherbee and Mrs. Garcia the court directed a verdict in favor of the City of Abilene and entered judgment on that verdict on March 31, 1989. Mrs. Garcia appealed.
II
Mrs. Garcia contends that the City of Abilene violated her sixth and fourteenth amendment right to counsel by not appointing an attorney to represent her in the municipal court trial of the failure to appear charge. However, because Mrs. Garcia was never actually incarcerated, the right to appointed counsel never attached. See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).
Ill
Mrs. Garcia also argues that the City of Abilene’s fine collection system as applied to her is unconstitutional under Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), and Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). She claims that the City of Abilene, through Judge Wetherbee, discriminated against her based on her economic status by attempting to imprison her for failure to pay her fine and by only extending the time for full payment of her fine instead of reducing the amount owed. Although Mrs. Garcia has never been arrested and placed in jail, the issuance of the arrest warrant, which to our knowledge remains pending, makes this case sufficiently ripe for our resolution. Cf. KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d 922, 927-31 (5th Cir.1983) (holding that real fear of prosecution under statute was sufficient to give plaintiff “standing” to challenge it).
In Tate the Supreme Court held that imprisoning an indigent solely because he is unable to pay his fines contravenes the equal protection clause by discriminating based upon economic status. Id. 401 U.S. at 399, 91 S.Ct. at 671. However, the Court emphasized that other alternatives are available to the states to enforce payment of fines:
The State is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction.
It is unnecessary for us to canvass the numerous alternatives to which the State by legislative enactment — or judges within the scope of their authority — may resort in order to avoid imprisoning an indigent beyond the statutory maximum for involuntary nonpayment of a fine or court costs. Appellant has suggested several plans, some of which are already utilized in some States, while others resemble those proposed by various studies. The State is free to choose from among the variety of solutions already proposed and, of course, it may devise new ones.
Id. at 399-400, 91 S.Ct. at 671-72 (quoting Williams v. Illinois, 399 U.S. 235, 244-45, 90 S.Ct. 2018, 2023-24, 26 L.Ed.2d 586 (1970)) (footnote omitted). The Court suggested payment of fines in installments as one alternative. Id. at 400 n. 5, 91 S.Ct. at 671 n. 5. Finally, the Court noted that it was leaving for decision another day the propriety of imprisonment when “alternative means are unsuccessful despite the defendant’s reasonable efforts to satisfy the fines.” Id. at 401, 91 S.Ct. at 672.
However, in Burton v. Goodlett, 480 F,2d 983 (5th Cir.1973), we opined that the question left open Tate, whether the state could jail indigents who failed to pay despite reasonable efforts, was implicitly answered in Tate. We stated:
Surely, such a caveat was an inescapable ingredient of the opinion. If indigents may avoid the payment of fines while those with funds or property are required to pay the penalty, we are a country in which some people are ruled by law while others are practically immune, at least as to offenses ordinarily punished by the exaction of a fine.
Id. at 985. We also found that Tate allowed the jailing of those whose failure to pay is “willful or otherwise unjustified.” Id.
In Bearden the Supreme Court revisited the Tate problem in the context of probation revocation. The Court, relying heavily on Tate, held that
in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.
461 U.S. at 672-73, 103 S.Ct. at 2072-73. The Court suggested that the states’ interest in punishment and deterrence could generally be satisfied by alternative punishments such as extending the time for payments, reducing the fine, or substituting some form of labor or public service in place of the fine. Id. at 672, 103 S.Ct. at 20.
Mrs. Garcia contends that the City of Abilene violated the principles established in Tate and Bearden by attempting to jail her solely because she could not pay her fines. However, these cases rest on the assumption that the indigent appears before the court to assert his inability to pay. Even assuming an individual who is fined is too poor to pay, if he does not appear and assert his indigency, the court cannot inquire into his reasons for not paying and offer alternatives.
Mrs. Garcia’s second argument is that Tate and Bearden required Judge Wetherbee to reduce the amount of the fine instead of extending the time for full payment. This is incorrect. These cases require only that courts use alternatives to imprisonment, one of which is extending the time to pay; they do not require courts to reduce the fine. In this case Judge Wetherbee employed three different alternatives: he dismissed two fines, extended the time for Mrs. Garcia to pay and offered her an installment plan.
IV
In sum, we find that the fine collection system of the City of Abilene as applied to Mrs. Garcia does not contravene constitutional standards, and, accordingly, the judgment of the district court is
AFFIRMED.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
|
songer_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
GULF SMOKELESS COAL CO. et al. v. SUTTON, STEELE & STEELE et al.
Circuit Court of Appeals, Fourth Circuit.
October 15, 1929.
No. 2825.
Donald M. Carter, of Chicago, Ill., and Russell S. Ritz, of Blueñeld, W. Va. (Francis W. Parker, Jr., and Norman S. Parker, both of Chicago, Ill., on the brief), for appellants.
A. S. Pattison, of Washington, D. C., D. J. F. Strother, of Welch, W. Va., A. S. Pattison & Son, of Washington, D. C. (Strother, Sale, Curd & Tucker, of Welch, W. Va., and W. H. Pattison, of Washington, D. C., on the brief), for appellees.
Before WADDILL, PARKIER, and NORTHCOTT, Circuit Judges.
PARKER, Circuit Judge.
This is an appeal in an infringement suit instituted by Sutton, Steele & Steele, the owners of patents 1,073,644 and 1,315,881, covering separating tables and processes of separation,- and the American Coal' Cleaning Company, licensee under the patents, against the Gulf' Smokeless Coal Company. During the hearing of the case, an order was entered making Roberts & Schaefer Company, an Illinois corporation, a party defendant, on the ground that it had manufactured and installed the separating tables and process of separation in use by the coal company and had entered into a contract with that company to defend any suits for infringement which might be instituted on account thereof. The court below held the patents valid and infringed. It granted an injunction against Roberts & Schaefer Company, as well as the coal company, forbidding further infringement, and referred the case to a master for an accounting against both defendants. Three questions are presented by the appeal: (1) Whether the patents sued on,are valid; (3) if so, whether the coal company has been guilty of infringement; and (3) whether the eourt acquired jurisdiction of the Roberts & Schaefer Company.
The patents in suit cover separating tables and processes for the separation of mixtures containing particles of different specific, gravity, such as ores, minerals, coal, etc. The value of these tables and processes depends particularly upon their suitability for separating fine coal from slate; and it is for this purpose that they are used by the defendant coal company. The table covered by patent 1,073,644 may be described as a jig table with a pervious top, inclined in such way that one comer, being the one at which the mixture to be separated is f&d upon it, is higher than the corresponding corner of the opposite side and lower than the corresponding comer of the opposite end. Narrow metal strips, called riffles, are attached, to the top extending longitudinally; and beyond the end of' these is a bar, called a banking bar, designed to retard the longitudinal movement of the particles of the mixture. The table is agitated longitudinally, and at the same time air is forced under pressure through the pervious top, with-the result that the heavier particles of the" mixture are propelled along the riffles, pile up against the banking bar, and -guided by it pass off the table, whereas the lighter par-' tides rise to the top and, under the influence of gravity, acquire a movement transverse the longitudinal movement and pass over the riffles and then off of the table at a different place from the heavier particles. The table of patent 1,315,881 differs from that of'the other patent, in that it is provided with a tailings riffle opposite the banking bar, which cuts off the lower comer of the table, and which is so low that the lighter particles flow over it just as they do over the other riffles, with the result that the lighter particles are more rapidly removed from the table and its capacity is increased. The following is a fair representation of the top of the table which is being constructed under the patents in suit:
It is the process of separation covered by the patents in suit, however, and not the tables themselves, which is claimed by complainants to have been infringed. The principle of the separating table is old; but complainants have devised a new process, which, with the aid of certain changes in the old separating tables, covered by their patents, has revolutionized the process of dry separation. This process may be described briefly as operating the tables in such way as to form an obstruction of the heavier partieles beyond the strata of the particles containing tailings, to cause the lighter particles to move transversely and in a direction opposite the propelling movement of the heavier particles and to flow over the tailings riffle and escape from the machine. Claim 7 of patent No. 1,-073,644 and claim 11 of No. 1,315,881 may be taken as typical of the process claims of the patents. They are as follows:
“7. The process of concentrating á mass of material, parts thereof having different characteristics, consisting in supporting the material upon a surface by a gaseous cushioning medium, gravitally feeding said material in one path, imparting a propelling movement in a direction across the movement of the material by gravity and forming an obstruction of said material across the line of travel of the propelling movement of said material until a substantially vertical stratum of concentrates is established beyond the strata of the material containing tailings.”
“11. The process of concentrating a mass of material, parts thereof having different characteristics, consisting in gravitally feeding and supporting the material upon a transversely and longitudinally inclined pervious support to cause the material to move longitudinally thereon by. gravity, supporting the material by a gaseous cushioning medium to permit stratification thereof, imparting to the heavier particles of said material by a series of impacts a positive movement by gravity, forming an obstruction of concentrates beyond the strata of material, containing tailings across the imparted movement of said material to exert a back pressure against the mass of material on said surface, and obstructing the movement of the concentrates in their movement exerted by back pressure for exerting and maintaining a constant pressure thereon, and subjecting the overlying stratum of lighter particles to the action of gravity to cause said particles to move transversely of said table in a direction opposite to the propelling movement of the heavier partieles.”
It is argued that there is nothing new in forming an obstruction of the heavier partieles of the mixture; that this is in effect nothing more than slowing up the transverse movement, which could be caused by elevating the end of. one of the old separating tables; and that, at all events, the process is not patentable, being but the function of the tables themselves. But we think that there can be no doubt that the process of the pate ents is new. While the slowing up of the transverse movement of the heavier partieles on one of the old separating tables might have ■been accomplished by elevating the end of the table as contended by defendants, no one thought of doing this as a means of accelerating the process of separation. On the contrary, it is shown to have been achieved as the result of experiments conducted by complainants. It has resulted in an increase of capacity until a table one-third the size of the old tables has a capacity nine times as great. It has revolutionized the process of dry separation and has made it available for the cleaning of fine coal, which is of great value to the coal mining industry. Knowledge after the event is always easy; but as said by Mr. Justice MeKenna in the Grant Tire Case: “The law has other tests of the invention than subtle conjectures of what might have been seen and yet was not. It regards a change as evidence of novelty, the acceptance and utility of change as a further evidence, even as demonstration.” Diamond Rubber Co. v. Consol. Tire Co., 220 U. S. 428, 435, 31 S. Ct. 444, 447, 55 L. Ed. 527; U. S. Industrial Chemical Co. v. Theroz Co. (C. C. A. 4th) 25 F.(2d) 387; Frick Co. v. Lindsay (C. C. A. 4th) 27 F.(2d) 59.
The principles laid down in the ease of Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U. S. 45, 43 S. Ct. 322, 330, 67 L. Ed. 523, seem to us to be controlling here on the question of novelty. In that case the invention involved merely the elevation of the breast roll end of the paper making wire of a Fourdrinier paper making machine, with the result that the liquid stock discharged upon the machine acquired, through the force of gravity, an additional speed, enabling it to keep pace with the machine at the critical paper-forming point, and making possible a much speedier production of good paper than had been theretofore obtained; from the use of the machine. The court sustained the patent and held that a previous slight elevation of the wire for another and distinet purpose did not constitute anticipation. It held, also* that a patent for a meritorious improvement on an old machine was entitled to a liberal construction, and, in disposing of the contention that what had been accomplished did not rise to the dignity of patentable invention, said: “We can not agree with the Circuit Court of Appeals that the causal connection between the unequal speeds of the stock and the wire, and the disturbance and rippling of the stock, and between the latter and the defective quality of the paper in high speeds of the machine, was so obvious that perception of it did not involve discovery which will support a patent. The fact, that in a decade of an eager quest for higher speeds this important ehain of circumstances had escaped observation, the fact that no one had applied a remedy for the consequent trouble until Eibel, and the final fact that, when he made known his discovery, all adopted his remedy, leave no doubt in our minds that what he saw and did was not obvious, and did involve discovery and invention.”
As to the contention that the process is but the function of the tables and hence not patentable, it is well settled, of course, that the mere function or effect of a particular machine cannot be the subject-matter of a patent. But we do not think that the process claims here fall within the condemnation of this rule. They describe, not merely the function of a machine, but a new and useful process or method of separating particles upon a separating table. The rule which we think applicable is well stated in Curtis on Patents (4th Ed.) § 14, as follows: “A process may be altogether new, whether the ma-chinery by which it is carried on be new or old. A new process may be invented or discovered, which may require the use of a newly-invented machine. In such case, if both the process and the machine were invented by the same person, he could take separate patents for them. A new process may be carried on by the use of an old machine, in a mode in which it was never used before. * * * In such a case, the patentability of the process in no degree depends upon the characteristic principle of the machine, although machinery is essential to the process, and although a particular machine may be required.”
This statement of the rule was quoted with approval in Expanded Metal Co. v. Bradford, 214 U. S. 366, 382, 29 S. Ct. 652, 657, 53 L. Ed. 1034, by Mr. Justice Day, who also quoted with approval Mr. Justice Bradley’s statement in the leading ease of Cochrane v. Deener, 94 U. S. 780, 787, 24 L. Ed. 139, as follows: “That a process may be patentable, irrespective of the particular form of the instrumentalities used, cannot be disputed. * * * Either may be pointed out; but, if the patent is not confined to that particular tool or machine, the use of the others would be an infringement, the general process being the same. A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing. If new and useful, it is just as patentable as is a piece of machinery. In the language of the patent law, it is an art. The machinery pointed out as suitable to perform the process may or may not be new or patentable, whilst the process itself may be altogether new, and produce an entirely new result. The process requires that certain things should be done with certain substances, and in a certain order; but the tools to be used in doing this may be of secondary consequence.”
The patented process is hard to describe so as to be readily understood by one not familiar with the art; but' it was carefully investigated by the Patent Office, as the entries on the file wrappers abundantly show. Prior patents relied upon as anticipations were carefully considered and numerous •changes were made in the claims before the patents were finally issued. It is well settled that in such ease the presumption of patentability arising from the issuance of the patent is greatly strengthened. While, of course, the judgment of Patent Office officials in such a case is not absolutely binding on the court, it is entitled to great weight and is to be overcome only by clear proof that they were mistaken and that there is lack of patentable novelty. Imperial Bottle Cap & Machine Co. v. Crown Cork & Seal Co. (C. C. A. 4th) 139 F. 312; Rubenstein v. Slobotkin (D. C.) 33 F.(2d) 603; J. A. Mohr & Son v. Alliance Securities Co. (C. C. A. 9th) 14 F.(2d) 799.
In the hearing below the process of the patents was demonstrated before the District Judge by the use of tables installed and operated for his benefit. He thus had the advantage not only of seeing the witnesses and hearing them testify, but also of seeing the process in operation. When to the presumption arising because of the granting of the patents by the Patent Office is added the presumption in favor of the correctness of the findings of the District Judge, who saw the witnesses, heard them testify, and witnessed the demonstrations of the process, we certainly would not be justified in reversing his action unless satisfied that it was clearly wrong. U. S. Industrial Chemical Co. v. Theroz Co., supra; Diamond Patent Co. v. Webster Bros. et al. (C. C. A. 9th) 249 F. 155. We are not so satisfied, but on the contrary, think that it was correct.
We have carefully examined the patents relied upon as anticipations of the patents in suit; and, without going into the differences between the tables which they cover and those involved in these patents, it is sufficient to say that none of them covers or suggests the process which is the essence of the invention •of complainants, and whieh they rely upon as being infringed. They cover separating tables, some involving wet and some dry processes of separation; most of them were carefully considered by the Patent Office, with the result that complainants were required to amend their application a number of times so as not to cover features which they disclosed; and, as stated, none of them discloses the process upon which complainants rely as the essence of their invention.
On the question of infringement, there can be no doubt that the coal company is using the process covered by ,the patents in suit and is using it upon separating tables in all material respects similar to the tables patented by complainants. These tables are shaped like the tables of complainants, like them have a pervious top and metal cleats or riffles, and like them receive the mixture at one comer, which is higher than the corresponding comer of the opposite side and lower than the corresponding comer of the opposite end. They have the same sort of tailings riffle similarly located; and, while they do not have a banking bar, they accomplish the result of “forming an obstruction of concentrates” by additional elevation of the end of the table. The similarity is at once apparent if a drawing of the table used by the coal company is compared with the drawing heretofore set forth of the table of complainants.
It is perfectly clear from the record before us that the similarity of the tables of the coal company to- those covered by complainants’ patents is by no means tbe result of accident. The coal company’s tables are known as Arms Air Concentrators, because designed by one Ray W. Arms. They were manufactured, as above stated, by 'Roberts & Schaefer Company of Chicago. That company at one time, through a contract with the American’ Coal Cleaning Corporation, had the agency for the sale of the tables covered by the patents of complainants and employed Arms to visit the plant of complainants and examine into the working of their tables and also to assist in the installation of certain of the tables for the American Coal Company at MeComas, W. Va. Arms thereafter went to work for Roberts & Schaefer Company regularly, while that company was advertising the sale of complainants’ tables as agent and was negotiating with the American Coal Cleaning Corporation for a contract giving it the exclusive agency for their sale. A long period of negotiation followed, during which the Roberts & Schaefer Company found itself unable to agree upon any contract proposed by the Coal Cleaning Corporation. Finally all efforts to agree upon a. contract were abandoned by the Roberts & Schaefer Company, and that company thereupon proceeded to bring out the Arms separator. The conclusion is irresistible that the ideas embodied therein were obtained from the tables and process covered by the patents of complainants.
It is not necessary to decide whether the Arms table constitutes an infringement of complainants’ table, as the suit here is based upon the process claims of the patents. As these patents cover useful advancements in the art, however, and for that reason are to be given a liberal interpretation, there would seem to ,be strong reason for applying the doctrine of equivalents and treating the additional elevation of the Arms table as the mechanical equivalent of the banking bar of complainants’ patent, as it accomplishes the same result in the same way. See Frick Co. v. Lindsay (C. C. A. 4th) 27 F.(2d) 59, 62, and eases there cited. But, without deciding this, it is perfectly clear that the process employed by defendants is precisely the same as the process discovered by complainants and covered by the process claims of their patents. It involves the forming of an obstruction of concentrates, beyond the strata of material containing tailings, aeross the imparted movement of the material; and this as stated above, is the essence of complainants’ invention. It obtains the same result as complainants’ process, in the same way. Although carried on by a mechanism very slightly different- from that used by complainants, it is clear that it is nothing more nor less than complainants’ process. This being true, there can be no question that it infringes. See Expanded Metal Co. v. Bradford, supra.
This leaves only the question as to whether the court acquired jurisdiction to grant relief against the Roberts & Schaefer Company. We think that it did. It is true that the statute requires that suit for the infringement of letters patent shall be brought in the district of which defendant is a resident, or has committed acts of infringement and has a regular and established place of business. Judicial Code § 48, 28 USCA § 109; W. S. Tyler Co. v. Ludlow-Saylor Wire Co., 236 U. S. 723, 35 S. Ct. 458, 59 L. Ed. 808; Winterbottom v. Casey (D. C.) 283 F. 518. And the fact that one has assumed and is' conducting the defense of a patent infringement suit in behalf of the defendant does not justify his being made a party defendant in derogation of this statute. Freeman-Sweet Co. v. Luminous Unit Co. (C. C. A. 7th) 264 F. 107; Van Kannel Revolving Door Co. v. Winton Hotel Co. (D. C.) 263 F. 988; Parsons Non-Skid Co. v. E. J. Willis Co. (C. C.) 176 F. 176; Bidwell v. Toledo Consol. St. R. Co. (C. C.) 72 F. 10; Radio Corporation of America v. E. J. Edmond & Co. (D. C.) 20 F.(2d) 929. This statutory provision, however, does not affect the jurisdiction of the court, which is conferred by section 24(7) of the Judicial Code, 28 USCA § 41 (7). Its effect is to confer a privilege personal to the defendant, which he may waive. He waives it if he does not, prior to entering a general appearance in the action, take objection in the proper form to the jurisdiction of the court over him. Sandusky Foundry & Machine Co. v. De Lavaud (D. C.) 251 F. 631; Victor Talking Machine Co. v. Brunswick-Balke-Collender Co. (D. C.) 279 F. 758; U. S. Expansion Bolt Co. v. H. G. Kroncke Hardware Co. (D. C.) 216 F. 186; Thomson-Houston Electric Co. v. Electrose Mfg. Co. (C. C.) 155 F. 543; In re Moore, 209 U. S. 490, 501 et seq., 28 S. Ct. 585, 52 L. Ed. 904, 14 Ann. Cas. 1164; Thames & Mersey Marine Ins. Co. v. U. S., 237 U. S. 19, 35 S. Ct. 496, 59 L. Ed. 821, Ann. Cas. 1915D, 1087.
The Roberts & Schaefer Company has clearly waived the benefit of the statute in this case. After an order was entered allowing amendment of the bill to make it a party, it filed a motion that it be dismissed from the suit for a number of reasons, among which was the following: “(e) Because the plaintiff’s bill makes no material and proper averments against it, charging infringement or participating in infringement of any of plaintiff’s patents.” This was nothing more nor less than a motion to dismiss the bill as to the Roberts & Schaefer Company, because of its failure to allege a cause of action against that company — a motion which under the new equity rules has taken the place of demurrer under the old practice. See Rule 29 (see 28 USCA § 723). There can be no question that such a motion, which invokes the judgment of the court as to the sufficiency of the pleading, amounts to a general appearance. Even though it be coupled with a motion to dismiss on jurisdictional grounds,' it waives the question of jurisdiction; for one will not be heard to invoke and deny jurisdiction in the same breath. Jones v. Andrews, 10 Wall. 327, 332, 19 L. Ed. 935; St. Louis & S. F. R. Co. v. McBride, 141 U. S. 127, 11 S. Ct. 982, 35 L. Ed. 659 ; Edgell v. Felder (C. C. A. 5th) 84 F. 69; Christensen v. Christensen (D. C.) 14 F.(2d) 475; Nelson v. Husted (C. C.) 182 F. 921; Cyclopedia of Federal Procedure, vol. 3, p. 427.
It is argued that no cause of action is alleged or relief asked against the Roberts & Schaefer Company in the bill, and that consequently it was erroneous to award an injunction and accounting against that company even if it were a party to the cause. It appears, however, that the Roberts & Schaefer Company had installed the infringing tables and process for the coal company and that it was admittedly defending the suit in behalf of that company under a contract obligating it to do so. When this was shown in the court below, complainants were allowed to amend their bill to make the Roberts & Schaefer Company a defendant, and the record recites that this was “accordingly done.” The pleadings seem not to have been actually amended in accordance with the order, but no inconvenience was caused to the company as a result of this neglect, nor has it been taken by surprise in any way. It knew that it was charged with infringing the patents which the coal company was charged in the bill with infringing, and that relief by way • of injunction and accounting was asked against it. If it desires more specific information as to the matters as to which an accounting is asked, it may move for same before the District Judge; but the failure of the complainants actually to make the amendment to their complaint in accordance with the permission granted them is no ground, under the circumstances of this ease, for dismissing the suit as to the company or for reversing the decree entered against it. On the contrary, even at this stage, complainants should be allowed to make the necessary amendment to conform the pleadings to the proofs or — what is the same thing — the court should consider the amendment as having been made in accordance with the permission granted. See Equity Rule 19 (see 28 USCA § 723); Grant Bros. Const. Co. v. U. S., 232 U. S. 647, 34 S. Ct. 452, 58 L. Ed. 776; National Waterworks Co. v. Kansas City (C. C. A. 8th) 62 F. 853, 863, 27 L. R. A. 827; Crescent Milling Co. v. H. N. Strait Mfg. Co. (C. C. A. 8th) 227 F. 804; 21 R. C. L. 577, 578, and cases cited; note L. R. A. 1016D, at page 843 et seq.
The decree of the court below will accordingly be affirmed.
Affirmed.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_applfrom
|
L
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
SUN OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
No. 18566.
United States Court of Appeals Fifth Circuit.
Feb. 15, 1961.
Herf M. Weinert, Beaumont, Tex., Robert E. May, Washington, D. C., for appellant.
John C. Mason, Gen. Counsel, F. P. C., Howard E. Wahrenbrock, Sol., Washington, D. C., for appellee.
Before TUTTLE, Chief Judge, and CAMERON and WISDOM, Circuit Judges.
PER CURIAM.
The Federal Power Commission has filed its motion to dismiss the Petition for Review filed by Sun Oil Company. Its Petition for Review seeks to have this Court set aside two orders of the Federal Power Commission, one issued June 2, 1960 and the other issued July 15, 1960. The proceedings that were before the Commission and which were dealt with by the said orders were in docket Nos. G-13617, G-13619, G-16685, and G — 16686.
The motion to dismiss is based on the ground that the orders appealed from are not final orders of the Commission and thus are not subject to review. Briefly stated, the orders denied motions made by the petitioner that the Commission terminate the proceedings then pending in the docket numbers referred to. The state of the proceedings at the time was that several increases in rates had been filed by Sun and had been suspended under Section 4(e) of the Natural Gas Act, 15 U.S.C.A. § 717c(e), and Sun was collecting the higher rates under the undertaking to make refunds if the rates were not ultimately approved. Proof had already been taken under the Section 4(e) proceeding, but the investigation had not been completed. The basis of Sun’s motion to terminate was its contention that the Commission had terminated other proceedings in like situations, and Sun contended that “It was manifestly unfair and discriminatory for the Commission to terminate suspension proceedings involving other independent producers, even though general rate proceedings had been instituted and some were being heard, * * * ” and to refuse at the same time to terminate Sun’s proceedings under identical circumstances.
This effort to cause the Commission to terminate proceedings during the investigation period and the Commission’s refusal to do so, of course, deals with an interlocutory or non-final issue. Sun may still obtain all the benefits it seeks if the Commission’s proceedings are permitted to go to a normal conclusion. The Commission’s refusal to abort the proceedings is not a reviewable order under the clear authority of Magnolia. Petroleum Company v. Federal Power Commission, 5 Cir., 236 F.2d 785, and associated cases.
In order to conserve the time, expense and energies of both parties we deem it appropriate to dispose of this motion summarily, rather than to delay its consideration until the case would otherwise be reached in its normal place on the calendar.
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_othcrim
|
A
|
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".
JOHNSON v. ZERBST, Warden. BRIDWELL v. ZERBST, Warden.
Nos. 8562, 8563.
Circuit Court of Appeals, Fifth Circuit.
Nov. 24, 1937.
Elbert P. Tuttle, of Atlanta, Ga., for appellants.
Bates Booth, Sp. Asst, to Atty. Gen., and Lawrence S. Camp, U. S. Atty., and Harvey H. Tisinger and H. T. Nichols, Asst. U. S. Attys., all of Atlanta, Ga., for appellee.
Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.
FOSTER, Circuit Judge.
These cases present appeals from judgments dismissing petitions for writs of habeas corpus to release appellants from the Atlanta penitentiary. The evidence is identical in both cases. By agreement only one record was printed, upon which both cases were submitted. The record discloses the following facts:
Appellants were arrested in Charleston, S. C., on November 21, 1934, charged with feloniously uttering and passing four counterfeit $20 Federal Reserve notes and with knowingly and feloniously possessing 21 counterfeit Federal Reserve Bank notes, with intent to defraud. A hearing was had before a United States commissioner, at which they were represented by counsel of their own choosing. They were bound over to await the action of the United States grand jury and, being unable to give bail, were confined in a local jail. An indictment was returned against them at the next term of court, and on January 23, 1935, they were brought into court, pleaded not guilty, and were tried to a jury, with the result that a verdict of guilty was rendered. They were sentenced to be imprisoned in the Atlanta penitentiary for 4 years and 6 months. No appeal was taken from this judgment. In December, 1935, they filed petitions in the United States District Court for the Northern District of Georgia, seeking release on habeas corpus. The petitions alleged that the judgment of conviction was an absolute nullity, on the grounds that they were innocent of the charge and were denied compulsory process for obtaining witnesses in their favor and to have the assistance of counsel for their defense, in violation of the Sixth Amendment; and were therefore denied due process of law, in violation of the Fifth Amendment. The District Court appointed competent counsel to represent them on the trial of the habeas corpus cases and evidence was taken on the hearing. The District Court reached the conclusion that they had been deprived of constitutional rights as alleged, but that, as the trial court had jurisdiction and the judge was not prejudiced nor swayed by any improper influence, the judgment was not void and the errors and irregularities complained of could be corrected only on appeal. Bridwell v. Aderhold (D.C.) 13 F.Supp. 253. No appeal was taken from these judgments. However, in December, 1936, the applications for release on habeas corpus were renewed on the same grounds. The District Court again appointed competent counsel to represent appellants on the second trial before him, and they were represented by competent counsel on this appeal.
There is some conflict in the evidence appearing in the record, but the following facts may be considered as proved with reasonable certainty. When appellants were brought into the District Court in South Carolina, the indictment was read to them and they signed pleas of not guilty. They were asked by the judge if they were represented by counsel and replied “No,” and were then asked by him if they were ready for trial and replied “Yes.” They did not request the judge to appoint counsel for them, he did not do so of his own motion, and they were not represented by counsel at the trial.
Appellants are white men, and were both in the service of the United States in the Marine Corps. Bridwell had had 11 years’ continuous service and was a corporal. The term of service of Johnson is not shown. Bridwell had attended a country school until he was 15 years of age. Johnson had had fifth grade education. During the trial Bridwell assumed charge of the defense for both appellants, crpssexamined government witnesses, took the stand in his own defense, and at the close of the case addressed the jury. Johnson did not testify. There was evidence tending to show that Bridwell conducted the defense very well for a layman and showed some familiarity with legal procedure. During the trial Bridwell stated that he did not think that men of such limited knowledge as appellants.would know counterfeit money when they saw it and asked that a witness be called to establish whether the money was counterfeit. The district attorney procured a witness, who was a deputy sheriff in charge of tax collections and handled considerable money in performing his duties. He testified that the money was counterfeit and that that fact was readily discernible. Bridwell had objected to the testimony of other witnesses, but no objection was made to the introduction of this witness nor to his testimony.
Bridwell testified the attorney who represented them before the commissioner continued to represent them until some time in January and was paid $100 for his services; that he released them because they would not follow his advice to plead guilty and they had no more money to pay him; that before the trial they made efforts to secure another lawyer, naming him, but were unable to get in touch with him because they were in jail. Bridwell also testified, and this was corroborated by Johnson, that, in the presence of the judge, he asked the United States attorney if he could be represented by counsel and was told by him that in South Carolina counsel was not appointed by the court except in capital cases. He then asked if he could have witnesses subpoenaed, and he was told by the United States attorney that it was too late. The United States attorney, his assistant, and the clerk of the court, who were present at the time, denied that Bridwell made inquiry as to securing either counsel or witnesses and denied that the United States attorney made the statements attributed to him. Appellants further testified they did not know and were not advised of their right to ask for a new trial or take an appeal until after they had been removed to the penitentiary, when they were told by a fellow prisoner. With his assistance they prepared an application for appeal, but the trial judge declined to allow it on the ground that it came too late and he was without jurisdiction. There is no doubt that the time for an appeal had elapsed under the criminal appeals rules.
Appellants rely upon the cases of Downer v. Dunaway (C.C.A.) 53 F.(2d) 586, and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. In Downer v. Dunaway we reversed a judgment of the District Court dismissing an application for habeas corpus without a hearing. The defendant was a negro charged with raping a white woman. The trial was conducted immediately after the crime was alleged to have been committed and under pressure of such great public feeling against the prisoner that the militia had to be called out to protect him during the trial. While the defendant was represented by counsel until the verdict was rendered, counsel did nothing to perfect an appeal to the Supreme Court of Georgia. The fact that the accused was not represented by counsel at a crucial time was not entirely the basis of our decision. We concluded that, assuming the allegations of the petition to be true, the trial was dominated by the mob so as to deprive defendant of due process of law.
Powell v. Alabama went up on writ of certiorari to the Supreme Court of Alabama and was not decided on application for habeas corpus. In that case the defendants were also negroes charged with raping white women. The danger of lynching was imminent, and it was necessary to call out the militia to protect the prisoners during the trial, which was held immediately after they were arrested. The defendants were not represented by counsel. It was held that in the circumstances attending the trial, considering the youth, ignorance, and illiteracy of the defendants, it was the duty of the court to appoint counsel to aid them in the preparation of their defense and in the trial of the case, whether requested or not. We do not consider these cases controlling as applied to the facts in the cases at bar.
It has been repeatedly held that the writ of habeas corpus may not be substituted for a writ of error or an appeal. If the trial court had jurisdiction, it is only in extraordinary cases, where the circumstances surrounding the trial make it a sham and a pretense, that the writ will lie on the ground that the judgment is a nullity for want of due process of law, even though it be alleged the accused has been denied rights guaranteed by the Constitution. Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009; Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070. The cases at bar do not present extraordinary features. Appellants were not immature and had sufficient education to understand the charge against them. There was no undue haste in bringing them to trial, there was no popular feeling against them, and1 the trial was quiet and orderly. They had over 2 months in which to procure counsel or to seek advice from their friends. The presiding judge was not prejudiced against them.. There is no showing that there were any witnesses they desired to have summoned to give testimony in their favor. They had the right of appeal, and the reasons for their not doing so are immaterial. They did not request the trial judge to appoint counsel for them. Perhaps it would have been better if he had done so of his own motion, but we are not advised of any decision of a court of last resort, state or federal, holding that in a noncapital case he was bound to do so. In fact, a number of decisions to the contrary, which we need not review, are cited by counsel for the United States. In Powell v. Alabama the decision was that counsel should have been appointed in that case, but the court expressly refrained from deciding whether that rule should obtain in all cases.
Due process of law does not absolutely require 'that the defendant in every criminal case be represented by counsel. He may expressly or impliedly waive his right and suffer no wrong. When a defendant is without counsel, the judge usually protects his rights. It is'not suggested that in these cases the evidence was insufficient to support the conviction.
The judgments dismissing the petitions were right. They are affirmed;
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_respond1_8_3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first 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.
In The Matter of RAFDO ENTERPRISES, INC., d/b/a The Black Orchid, a Corporation, Bankrupt. J. B. COHEN, d/b/a Consolidated Service Bureau, Appellant, v. James E. KENNEDY, Trustee in Bankruptcy of Rafdo Enterprises, Inc., Appellee.
No. 13467.
United States Court of Appeals Seventh Circuit.
Jan. 10, 1962
Joseph W. Grady, Chicago, 111., for appellant.
Sherwin 0. Simon, Chicago, 111., for appellee.
Before HASTINGS, Chief Judge, and DUFFY and CASTLE, Circuit Judg.es.
CASTLE, Circuit Judge.
A petition and amended petition was filed by appellant to recover $625.00 from the Trustee in Bankruptcy, the appellee here. A hearing was had before the Referee in Bankruptcy who made and entered findings of fact and conclusions of law, and an order denying said petition and amended petition. On petition for review the District Court confirmed the order of the referee denying the petitions. This appeal is from said order.
The record shows that on March 14,. 1961 the trustee filed his report and account affixing thereto numerous schedules, including Schedule “F” entitled “Uncollected Accounts Receivable to be offered for sale at final meeting of creditors.” Said Schedule “F” listed the names of debtors, the amounts of their indebtedness and the cause of non-collection such as “skip”, “payment promised”, “contested”, “denies liability”, etc. The said final report also detailed the efforts that had been made on behalf of the trustee to collect these delinquent accounts. A notice of the final meeting of the creditors was issued on April 12, 1961 advertising that the uncollected accounts receivable would be offered for sale on April 27, 1961. On said date the sale was had by competitive bidding in open court and the appellant bid the amount of $625.00 “for the Trustee’s right, title and interest in and to the accounts” upon acceptance of which a draft order was issued authorizing the trustee to execute such documents as might be necessary in transferring and setting over to appellant all of the trustee’s right, title and interest in and to the uncollected accounts receivable without any warranty or guaranty.
On May 8, 1961 the appellant presented his petition to vacate the sale and the paragraphs which are important in this case are paragraphs 3 and 4 of said petition, which are:
“3. Your petitioner represents that a great bulk of the accounts receivable have denied.any obligation or else insisted upon a set off, counter-claim or recoupment in excess of the amount of the accounts receivable.”
“4. Your petitioner represents that it is inequitable to allow such a sale to stand.”
A hearing was held on said petition and the referee denied the petition. The hearing was then continued to May 24, 1961 and an amended petition was filed which set up substantially the same matters as were set up in the original petition only in a little more detail. The referee entered his formal order on May 24, 1961 denying the petitions and incorporating therein his findings and legal conclusions upon which the denial was based. On May 31 a petition for review was filed upon which the referee’s certificate issued on June 15, 1961 setting a hearing for June 19 before the trial judge. On June 23, the District Court handed down its opinion affirming the referee on due consideration of the record.
The accounts offered for sale were available for inspection. The records of the bankrupt and correspondence of the trustee were available for inspection. The final report filed in the proceedings indicated the precariousness of the uncollected accounts. The sale was without warranty and without guaranty, and there was competitive bidding for the trustee’s right, title and interest only.
Appellant complains of the trustee’s failure to file a formal answer to appellant’s petitions. But such argument does not merit consideration here. Appellant proceeded to a hearing on the merits of the petitions without objection and failed to raise this issue before the referee or before the trial court on review. Appellant is in no position to protest for the first time on appeal. Not only have we had occasion to point out in In re Tucker Corporation, 7 Cir., 256 F.2d 808, 811 that:
“Pleadings in bankruptcy often are not as formal as in other types of litigation. The Trustee did not make a demand for a more particular statement. We think no one was misled as to the issues which the claimants were tendering”
but also Rule 61, Federal Rules of Civil Procedure (28 U.S.C.A.) requires that we disregard any error or defect in a proceeding which does not affect the substantial rights of the parties.
The referee made findings of fact left undisturbed by the trial court. Such findings are presumptively correct and will not be set aside unless clearly erroneous. Gold v. Gerson, 9 Cir., 225 F.2d 859, 861. In the instant case the findings are amply supported by the record and the District Court did not err in its conclusions.
The judgment order of the District Court is affirmed.
Affirmed.
Question: This question concerns the first 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_majvotes
|
2
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
In the Matter of ABINGDON REALTY CORPORATION, Bankrupt. UNITED STATES of America, Internal Revenue Service, Appellees, v. Gerald M. O’DONNELL, Trustee, Docter, Docter and Salus, Appellant.
No. 78-1784.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 8, 1979.
Decided Oct. 29, 1980.
K. K. Hall, Circuit Judge, filed dissenting opinion.
Ronald L. Walutes, Annandale, Va. (Robert G. Mayer, Walutes & Diaz, Annandale, Va., on brief), for appellant Docter, Docter & Salus.
Karl Schmeidler, Tax Div., Dept, of Justice, Washington, D. C. (Justin W. Williams, U. S. Atty., Alexandria, Va., M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews and Mary L. Jennings, Tax Div., Dept, of Justice, Washington, D. C., on brief), for appellees.
Before WINTER and HALL, Circuit Judges and MATTHEW J. PERRY, United States District Judge for the District of South Carolina, sitting by designation.
PER CURIAM.
The appellants, Docter, Docter & Salus, appeal from an Order of the District Court which reversed a ruling by the Bankruptcy Judge, denying the Internal Revenue Service’s several motions concerning its claim against the assets of Abingdon Realty, the bankrupt.'
The claim of the Internal Revenue Service is based inter alia upon a promissory note executed on October 10, 1972, by 36 corporations, including the bankrupt herein, agreeing to pay the entire unpaid wage tax liabilities of certain other corporations which were owned and operated by the Pomponio brothers, incorporators common to all. The note was secured by a second promissory note by which the Pomponio brothers and their wives agreed to be personally liable for the debt in the event of default and by a second deed of trust executed by Abingdon Realty, the bankrupt, on its principal asset, a building located in Arlington County, Virginia.
On November 21, 1972, subsequent to the execution of the note and the second deed of trust, Abingdon Realty petitioned for relief under Chapter XI of the Bankruptcy Act. No Chapter XI plan of arrangement was confirmed and, thereafter, Abingdon Realty was adjudicated a bankrupt and its assets were ordered liquidated. The United States filed a proof of claim in the bankruptcy proceeding for $1,859,609.61 based upon the secured promissory note of the 36 related Pomponio corporations. The claim was filed as a priority claim for a debt due the United States under Section 64(a)(5) of the Bankruptcy Act, 11 U.S.C. § 104. The record discloses that, thereafter, negotiations between certain unsecured creditors and an agent of the Internal Revenue Service led to an agreement by which the unsecured creditors would receive a percentage of their claims with the balance of the assets to be paid to the Internal Revenue Service. The terms of the agreement were stated to the Bankruptcy Court by an attorney for the unsecured creditors at a hearing on November 5, 1974. Thereafter, at the request of the trustee in bankruptcy, the Regional Counsel of the Internal Revenue Service wrote the trustee, confirming the Government’s understanding of the agreement. However, in a notice of a hearing concerning the proposed final distribution of the assets of the bankrupt, the claim of the IRS was stated as follows:
(6)(b) Claim No. 38 of the Internal Revenue Service filed as a priority claim in the amount of $1,859,609.61, which is disallowed in consideration of the payment of 35% of the fund available herein for distribution to general creditors of the Internal Revenue Service, the remaining 65% of the fund available for distribution to be paid to general creditors of the estate.
While the above notice was sent to seven government offices, the attorney responsible for representing the Regional Counsel for the IRS in the bankruptcy proceedings later stated that he never received the notice. The IRS was not represented at the hearing which was held June 7, 1977. On June 14, 1977 the Bankruptcy Judge entered an Order which inter alia disallowed the claim of the Internal Revenue Service in the full amount of $1,859,609.61 as having been compromised pursuant to a previous order of the court. Distribution pursuant to the June 14, 1977 order of the Bankruptcy Court was made. Thereafter the Internal Revenue Service moved the Bankruptcy Court to reconsider its June 14, 1977 order upon the ground that the trustee had misrepresented the terms of the compromise agreement and upon the further ground of excusable neglect. On April 18, 1978, the Bankruptcy Court denied the Government’s motion for relief. At a hearing on the Government’s appeal from the order of the Bankruptcy Court, the District Judge reversed the order of the Bankruptcy Judge and remanded the cause to the Bankruptcy Court to reconsider whether, prior to the entry of its order of June 14, 1977 disallowing the Internal Revenue Service’s claim in the sum of $1,859,609.61, there was an actual compromise of the claim and, if so, the terms thereof. This appeal followed.
The appellant argues that, for several reasons, the District Judge erred. We decline, however, to reach decision on the matter as presented, for we have concluded that the appeal is premature. The District Judge took no action which finally determined the rights of the parties. Instead, he remanded the case to the Bankruptcy Court for reconsideration of its order disallowing the claim of the Internal Revenue Service and, further, to determine whether there was an actual compromise of the Government’s claim and, if so, the terms thereof. The District Court’s order is thus an interlocutory order in a controversy arising in a proceeding in bankruptcy which, under Section 24 of the Bankruptcy Act, 11 U.S.C. § 47(a) may not be appealed. Indeed, in a controversy arising in a proceeding in bankruptcy, an appeal will lie only from a final order which leaves “nothing ... to be done but the mechanical entry of judgment by the court . ... ” Matter of Ben Hyman & Co., 577 F.2d 966 (5th Cir. 1978). The order is interlocutory because the Bankruptcy Court is required to take “further action before any affirmative decree settling the claimant’s rights. ... ” Standard Electronics Corp. v. Kenneally, 336 F.2d 394 (8th Cir. 1964). In re Merle’s Inc., 481 F.2d 1016 (9th Cir. 1973).
The appellant urges that the order of the district judge is appealable because it concerns the distribution of the assets among the general creditors which are routine administrative steps and that the allowance and disallowance of claims and final orders of distribution are “proceedings” and not “controversies.” While it is true that under Section 24(a) of the Bankruptcy Act (11 U.S.C. § 47(a)), interlocutory appeals may in some instances be taken from orders in “proceedings” in bankruptcy, see 9 Moore’s Federal Practice H 110-19(5) (2d ed.), Pp. 222-223, we have held that an appeal will not lie from an interlocutory order in a “proceeding” if that order involves “preliminary or procedural matters” and does not amount to a determination of substantive rights and duties. Carolina Mills, Inc. v. Corry, 206 F.2d 76 (4th Cir. 1953). See also Baldonado v. First State Bank of Rio Rancho, 549 F.2d 1380, 1381 (10th Cir. 1977); In re Durensky, 519 F.2d 1024, 1028-1029 (5th Cir. 1975); In re Charmar Investment Co., 475 F.2d 560 (6th Cir. 1972), cert. denied, 414 U.S. 823, 94 S.Ct. 123, 38 L.Ed.2d 56 (1973); Cope v. Aetna Finance Co. of Maine, 412 F.2d 635, 639 (1st Cir. 1969); Dubnoff v. Goldstein, 385 F.2d 717, 722 (2d Cir. 1967); In re Chicago Rapid Transit Co., 200 F.2d 341 (7th Cir. 1952). In this case the district court declined to determine the rights and duties of the parties but, instead, remanded the case. Thus, the order was interlocutory and, under the above decisions, it was not appealable even if we were to assume that the matter is a “proceeding” in bankruptcy under section 24(a) of the Bankruptcy Act.
For the reasons above stated, the appeal is hereby dismissed.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_respond2_1_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second 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".
TOWN OF NORWOOD, MASSACHUSETTS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Boston Edison Company, Intervenor.
No. 89-1130.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 17, 1990.
Decided June 29, 1990.
As Modified Aug. 29, 1990.
Rehearing Denied Aug. 29, 1990.
Charles F. Wheatley, Jr., with whom Timothy P. Ingram, Annapolis, Md., was on the brief, for petitioner.
Hanford O’Hara, Atty., F.E.R.C. (“FERC”), with whom Catherine C. Cook, Gen. Counsel, and Jerome M. Feit, Sol., F.E.R.C., Washington, D.C., were on the brief, for respondent.
Carmen L. Gentile, with whom Thomas L. Blackburn, Washington, D.C., was on the brief, for intervenor.
Before MIKYA, SILBERMAN, and BUCKLEY, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
BUCKLEY, Circuit Judge:
The Town of Norwood, Massachusetts seeks review of orders of the Federal Energy Regulatory Commission denying the Town refunds of overpayments to a utility. Because we find that the Town failed to present its argument for such refunds in an application for rehearing before the Commission, we dismiss this petition for want of jurisdiction pursuant to section 313 of the Federal Power Act, 16 U.S.C. § 825i (1988).
I. Background
On August 30, 1983, the Boston Edison Company filed with the Federal Energy Regulatory Commission for a rate increase in its provision of electric power transmission services to the Town of Norwood, Massachusetts. In this filing, Edison sought to apply a transmission tariff to Norwood that differed in some respects from that which had been applied previously. Certain elements of that tariff, not relevant to this petition, were contested by Norwood. As part of its filing, Edison included a document showing the sum of $745,552 as the amount of revenue the tariffs formula was to yield over a year. The parties dispute whether this specific figure was actually a part of the “filing.” Edison asserts that the $745,552 revenue figure served only as the basis for the redesign of the rate structure, while the Town maintains that it was a component of the original filing and, as such, serves as a cap on revenues.
By order dated October 31, 1983, the Commission accepted Edison’s proposed rates, to become effective on November 2. Pursuant to sections 205 and 206 of the Federal Power Act, 16 U.S.C. 824d, 824e, it allowed the rates to go into effect subject to refund if they were found to be unreasonable at a subsequent hearing, which it also set. 25 F.E.R.C. 11 61,157, at 61,438 (1983). The hearing was held before an Administrative Law Judge, who issued his initial decision on October 29, 1985. 33 F.E.R.C. 1163,027, at 65,076 (1985). The ALJ upheld most portions of Edison’s formula, held that one aspect of it was inappropriate, and determined that Edison’s filing did in fact include a cap of $745,552. Id. at 65,084.
Edison and the Town both filed Motions for Reconsideration. Norwood was dissatisfied with virtually the entire initial decision, and Edison objected to the AU’s initial finding that its filing had included the $745,552 cap on its revenues. Nonetheless, in an opinion on reconsideration, the AU found Norwood’s objections unpersuasive, and, in the matter relevant to the present appeal, found Edison bound by what he asserted was Edison’s original filing for $745,552 in revenues. 34 F.E.R.C. 11 63,029, at 65,135-36.
Edison then filed objections to the ALJ’s order on reconsideration with the Commission, taking issue with the AU’s limitation of Edison’s revenues to $745,552. It argued that its own submissions supported revenue requirements of $825,000 to $830,-000, and that even the exhibits of the Commission staff supported revenues of $770,-000 to $780,000, both higher than the $745,-552 cap imposed by the ALJ. On August 1, 1988, the Commission issued its opinion essentially upholding the ALJ in all respects relevant here and ordering Edison to pay refunds for all amounts collected over and above the “revised rates,” that is, those incorporating the limitation of $745,-552. 44 F.E.R.C. 11 61,199 (1988) (“Opinion 310”). As the Commission clearly stated:
The Commission summarily affirms the judge’s finding in the order on reconsideration that Edison should recover no more than $745,552 in total revenues. We believe that the record demonstrates that this is the amount for which Edison filed and that it intended to collect.... Notwithstanding whether the firm rate is ratcheted or unratcheted, the revenues will not exceed $745,552. Edison submitted this proposed rate level and is bound by it.
Id. at 61,715 (footnotes omitted).
On August 31, 1988, Edison and Nor-wood both filed timely applications for rehearing of Opinion 310. Edison argued that it should be permitted to collect more than the $745,552, or, in the alternative, that it should not be forced to pay refunds for any amounts collected above the filed-for rate up until the date of issuance of Opinion 310. Although it is nowhere explicit in the record exactly how much Edison collected in excess revenues, it would appear from the size of the refund made to Norwood in 1988-89 that the sums would be significant, on the order of $100,000 per year.
Norwood’s application for rehearing contained only objections to the Commission’s determination that various terms and conditions of Edison’s firm transmission service were reasonable. On December 20, 1988, the Commission denied rehearing in part and granted it in part. 45 F.E.R.C. ¶ 61,-455 (1988) (“Opinion 310-A”). Although the Commission refused to change its mind on the rate elements to which the Town objected, or on the limitation imposed on Edison’s rate, it agreed with Edison that it was the Commission’s practice not “to order refunds based only on a change in rate design,” id. at 62,412, such as was involved here, as opposed to a change in the rate itself. The Commission thus reversed its prior position requiring refunds for the period November 2, 1983, through August 1, 1988, and instead directed that the ALJ’s initial order limiting revenues to $745,552 have only prospective effect from the date of Opinion 310. Id. Without seeking rehearing of Opinion 310-A, Norwood filed the instant petition for review, arguing that allowing Edison to keep the amount collected in excess of the filed rates violates the well-established filed rate doctrine. See Electrical Dist. No. 1 v. FERC, 774 F.2d 490, 493 (D.C.Cir.1985).
II. Discussion
FERC argues that this court is prohibited by section 313(b) of the Federal Power Act from considering Norwood’s petition because Norwood did not first present to the Commission in an application for rehearing the argument it now presents to this court, namely, that the Commission was legally obliged to order refunds to the Town for all overcharged amounts. Section 313(b) provides:
Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States Court of Appeals ... by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part.... No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for the failure so to do.
16 U.S.C. § 825Z (b) (emphasis added).
Courts strictly construe the jurisdictional rehearing requirement of section 313(b). See ASARCO, Inc. v. FERC, 777 F.2d 764 (D.C.Cir.1985) (construing analogous provision in section 19(b) of the Natural Gas Act (“NGA”)). This court has noted the severity of NGA section 19(b)’s “virtually unheard-of mandatory petition-for-rehearing requirement” and its “additional requirement of raising the very objection urged on appeal.” Tennessee Gas Pipeline Co. v. FERC, 871 F.2d 1099, 1110 (D.C.Cir.1989) (internal quotes omitted). We nevertheless recognized these rehearing requirements as “express statutory limitations on the jurisdiction of the courts.” Id. at 1107. Norwood has not demonstrated that it falls within the exception to the rehearing requirement created for those with reasonable grounds for having failed to raise their objections before the Commission. Thus, we can only entertain Norwood’s arguments if it filed an application for rehearing and urged therein its filed rate argument as required by section 313(b). Its alleged ground assumes the very fact here in dispute: that Norwood’s argument before the Commission was substantially the same as the argument it now makes concerning the scope of the Commission’s power to apply a rate change prospectively.
In Tennessee Gas, we addressed the situation where an initial order of the Commission had eliminated a minimum billing provision that was being challenged by a customer, Columbia Gas Transmission Corporation. But rather than eliminate it retroactively as Columbia Gas had sought, the Commission eliminated the provision as of September 1, 1986, the date on which it was found to be illegal. In its petition for rehearing, Columbia Gas raised arguments as to why the effective date should be earlier than September 1, 1986. The petition was denied. The Commission decided, however, to treat a motion for clarification from one of the parties as a petition for reconsideration or rehearing and then, in a rehearing order, moved the effective date forward to August 1, 1987. Id. at 1102-03.
Columbia Gas then petitioned for review in this court without having sought a rehearing of the rehearing order. It presented not only its old arguments for why the elimination of the minimum billing provision should have been retroactive, but also new arguments asserting, for the first time, that the Commission in any event could not make the effective date of the elimination later than the date of the finding of illegality, to wit, September 1, 1986, as it had in the rehearing order. We held that although the customer had properly preserved its old arguments, we had no jurisdiction to consider the new ones running against any post-September 1, 1986 effective date. • Id. at 1110. We found that Columbia Gas did not and could not have raised the new arguments in its first petition for rehearing because at that time the effective date established by the Commission was September 1, 1986. Id. at 1109. It was only after Columbia Gas had been aggrieved by the change effected by the rehearing order that its alternative arguments assumed relevance. We concluded that in light of this new aggrievement, Columbia Gas should have filed a second petition for rehearing, treating the rehearing order as a new order. Id. at 1110.
We find Norwood’s situation in this case analogous to that of Columbia Gas in the Tennessee Gas case. Norwood had one set of complaints against Opinion 310 that it lodged in a petition for rehearing with the Commission. Its present complaint, however, is concerned not with the grievance Norwood suffered as a result of Opinion 310, but rather with the one resulting from Opinion 310-A, which eliminated the refund previously granted by Opinion 310. It is obvious that Norwood had not raised in its initial rehearing petition its argument that the Commission was obliged to order refunds, because at that time the Commission had ordered refunds. Thus, as was the case in Tennessee Gas, the proper course for Norwood would, have been to raise this argument in a second petition for rehearing, treating Opinion 310-A as a new order.
Norwood contends that the Federal Power Act does not require an endless cycle of rehearing applications. While we generally agree, we conclude that it does require an application for rehearing of an order on rehearing when the later order modifies the results of the earlier one in a significant way, raising objections to the rehearing order that are substantially different from those raised against the original one. See Southern Natural Gas Co. v. FERC, 877 F.2d 1066, 1073 (D.C.Cir.1989). Here, of course, Opinion 310-A had the effect of completely reversing Opinion 310’s results with respect to refunds. The Town cannot escape the fact that the arguments it now raises against this change were not made before the Commission, despite the fact that “it could easily have done so by filing a. second petition for rehearing which treated the modification order as a new order.” Tennessee Gas, 871 F.2d at 1110.
In addition, even if the changes wrought by the rehearing order were considered sufficiently minimal that the Town could rely on its first rehearing application for jurisdiction in this court, it would still be confined in this petition to those objections that were actually “urged before the Commission.” 16 U.S.C. § 825i. As the issue of the Commission’s authority in setting the effective date of its order and the consequent disallowance of refunds was not urged before the Commission at the earlier rehearing, we would still be precluded from considering it now. Indeed, the argument that the Commission was obliged by the filed rate doctrine to order refunds could not have been argued on the application for rehearing, since at that time, the Commission was in agreement with petitioner that the refund was in order. See Tennessee Gas, 871 F.2d at 1109-10.
III. Conclusion
As the Town of Norwood had not previously presented the Commission, in a petition for rehearing, with its arguments challenging the denial of the refund granted in Opinion 310, we have no jurisdiction to hear them on appeal. The petition for review of the Commission’s order on rehearing is therefore
Dismissed.
MEMORANDUM
The Town of Norwood petitions this panel for rehearing, urging solely that it “argued to this Court in its brief and before the Court that it had met the statutory exception under the Federal Power Act’s rehearing requirement for ‘reasonable grounds’ in not filing a second rehearing” and “[t]his Court’s opinion overlooked this argument in its decision.” Petition for Rehearing at 1.
Norwood is correct in pointing out that our opinion erroneously stated “Norwood has not argued that it falls within the exception to the rehearing requirement created for those with reasonable grounds for having failed to raise their objections before the Commission.” Town of Norwood v. FERC, 906 F.2d 772, 774 (D.C.Cir.1990); see Petition for Rehearing at 2. In fact, Norwood did raise this argument. Petitioner’s Reply Brief at 15-16; see also Petition for Rehearing at 2-3. Recognition of this mischaracterization, however, does not disturb our view that we lack jurisdiction to consider Norwood’s argument that the Commission was obliged to grant the refunds.
Norwood asserts that its “reasonable ground” for failure to bring its argument for refunds in an application for rehearing of Order 310-A was that it had already made its objection to Edison’s attempts to increase its filed-for rates prior to the issuance of Order 310. An application for rehearing of Order 310-A thus “would add little to the objections the Commission had already considered.” Petitioner’s Reply Brief at 16. The objections Norwood had already brought before the Commission pri- or to the issuance of Order 310, however, had nothing to do with the Commission’s authority to make its rate determination prospective. They were aimed only at “Edison’s attempts to increase its filed-for rate.” Id. at 15.
As our opinion made clear, the grievance suffered by Norwood at the hands of Opinion 310-A, to wit, the denial of refunds that had been granted by Opinion 310, was a different grievance, and the objections to it different objections, than those actually raised before the Commission. See 906 F.2d at 775-76. Norwood’s argument before the Commission was that Edison’s annual revenues had to be limited to $745,552. Its argument here is the substantially broader proposition that the Commission, in light of the filed rate doctrine, has no discretion to order that such a limitation be effective prospectively only. This second argument was simply not raised before the Commission, and indeed, as we observed, could not have have been because the Commission had been in agreement with Nor-wood that refunds were in order. Id. at 775-76. Thus, a second rehearing petition would not “add little” to Norwood’s previous objections, see Petitioner’s Reply Brief at 16, but rather would give the Commission its first chance to consider the scope of its discretion, in light of the filed rate doctrine, to order rate changes prospectively.
In view of the foregoing, it is clear to us that Norwood did not have “reasonable grounds” for the failure to file a second application for rehearing. While we admit that Norwood did argue that it had such reasonable grounds for failure to file a second application, under section 313 of the Federal Power Act, 16 U.S.C. § 825 l, our jurisdiction exists only if “there is reasonable ground for the failure so to do.” Id. (emphasis added). Our previous opinion logically foreclosed the “reasonable ground” put forward by Norwood in the instant petition for rehearing by rejecting Norwood’s claim that the arguments it raised before the Commission were the same as those brought before this court.
We thus conclude that Norwood’s petition should be denied. Norwood, however, has rightly pointed out a technical error in our opinion. We will therefore issue an order to correct that opinion, making clear that while Norwood did argue that it had a reasonable ground for the failure to file a second rehearing application with the Commission, we found no merit in the argument.
So ordered.
Question: This question concerns the second 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:
|
songer_majvotes
|
3
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
UNITED STATES of America, Plaintiff-Appellee, v. Wendell BLOUNT, Defendant-Appellant.
No. 72-2040.
United States Court of Appeals, Sixth Circuit.
Argued April 2, 1973.
Decided June 8, 1973.
John W. Peck, Circuit Judge, filed concurring opinion.
Frederick Taft, Cleveland, Ohio, for defendant-appellant; James D. London (Court Appointed), Public Defender, Cleveland, Ohio, on brief.
Clarence B. Taylor, Asst. U. S. Atty., for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., Charles A. Caruso, Dept, of Justice, Atty., Office for Drug Abuse Law Enforcement, Cleveland, Ohio, on brief.
Before PECK, McCREE and LIVELY, Circuit Judges.
McCREE, Circuit Judge.
We consider an appeal from a judgment following jury convictions on both counts of a two-count indictment charging illegal distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). Appellant was sentenced to three years imprisonment on each count, to be served consecutively. Five issues are presented on appeal.
Two issues attack the sufficiency of the evidence to refute the defense of entrapment. We determine that they are without merit. The record contains ample evidence to support the finding that appellant was not entrapped and it was therefore proper to submit that issue to the jury.
A third contention assigns error to the trial judge’s failure to give a limiting instruction about testimony of criminal acts not charged in the indictment, offered solely to negative appellant’s contention that he had been entrapped. Appellant’s counsel did not request a limiting instruction either at the time the evidence was introduced or before the ease was submitted to the jury. Since the testimony was relevant to an issue in the case, we find no error in the court’s failure to give a limiting instruction sua sponte.
Appellant’s remaining assignments of error have more substance. During the voir dire examination of the prospective jurors, the district court refused appellant’.s request to ask if they could accept the proposition of law that a defendant is presumed to be innocent, has no burden to establish his innocence, and is clothed throughout the trial with this presumption. Appellant contends that this refusal constituted reversible error. We agree.
Federal Rule of Criminal Procedure 24(a) invests wide discretion in trial judges in determining the questions to be asked of veniremen, and the prevailing rule is that the court’s determination about the questions to be put to the jury will not be disturbed without a clear showing of abuse of discretion. 5A Moore’s Federal Practice ¶ 47.06 (2d ed. 1967); United States v. Crawford, 444 F.2d 1404 (10th Cir. 1971); United States v. Owens, 415 F.2d 1308 (6th Cir.), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 406 (1969).
The primary purpose of the voir dire of jurors is to make possible the empanelling of an impartial jury through questions that permit the intelligent exercise of challenges by counsel. Wright, 2 Federal Practice and Procedure ¶ 382 (1969). It follows, then, that a requested question should be asked if an anticipated response would afford the basis for a challenge for cause. See e. g., United States v. Carter, 440 F.2d 1132 (6th Cir. 1971); Brown v. United States, 119 U.S.App.D.C. 203, 338 F.2d 543 (D.C. Cir. 1964); United States v. Napoleone, 349 F.2d 350 (3d Cir. 1965). Certainly, a challenge for cause would be sustained if a juror expressed his incapacity to accept the proposition that a defendant is presumed to be innocent despite the fact that he has been accused in an indictment or information. It is equally likely that careful counsel would exercise a peremptory challenge if a juror replied that he could accept this proposition of law on an intellectual level but that it troubled him viscerally because folk wisdom teaches that where there is smoke there must be fire. Accordingly, the failure of the trial judge to ask the question upon request was erroneous and since the failure may have resulted in the denial of an impartial jury, the error cannot be dismissed as harmless. See Brown v. United States, supra (Burger, J.). It matters not that the putting of the question might also, as appellee contends, have constituted anticipatory argument to precondition the jury. This is an unavoidable consequence of the voir dire jury examination.
The remaining contention concerns the denial of appellant’s request for a continuance. At arraignment on June 8, 1972, without benefit of counsel, appellant pled not guilty and assured the district court that he intended to retain his own attorney prior to trial. To prevent delays and ensure a speedy trial, the district court appointed the Cleveland Public Defender’s Office to act as defense counsel of record and marked the case for trial on June 19, eleven days later. The Defender’s Office was promptly notified that same day, and appellant was told that the court would permit the substitution of counsel once a private attorney was retained. Appellant contends that such a short time to obtain counsel and prepare a defense constituted a violation of due process.
The trial judge’s concern to expedite the trial is most commendable, but expedition should not be pursued at the cost of the quality of justice. Fundamental to due process is the effective assistance of counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (1963). And a defendant with sufficient means should be afforded the opportunity to employ counsel of his own choice. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680 (1942); United States v. Balk, 318 F.2d 288 (6th Cir. 1963).
Blount lived in Akron, was incarcerated before trial in Youngstown, and was scheduled to be tried in Cleveland. These cities form the vertices of a scalene triangle, one leg of which is 35 miles long, another 50, and the third 70. Appellant was afforded only 11 days, with two intervening weekends (seven work days), within which to obtain counsel from a jail cell, in a city not his residence. And it does not appear that he had ready access to a telephone and a legal directory. Because of our disposition of the voir dire issue, we find it unnecessary to decide whether the denial of a continuance requires us to follow Balk, supra, where we found a denial of Sixth Amendment rights, or United States v. Sisk, 411 F.2d 1192 (6th Cir.), cert. denied, 396 U.S. 1018, 90 S.Ct. 584, 24 L.Ed.2d 509 (1969), where we found no error.
Reversed and remanded for a new trial.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
sc_respondent
|
028
|
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.
SULLIVAN v. FLORIDA
CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
No. 08-7621.
Argued November 9, 2009 —
Decided May 17, 2010
Bryan A. Stevenson argued the cause for petitioner. With him on the briefs were Aaryn M. Urell and Alicia A. D’Addario.
Scott D. Makar, Solicitor General of Florida, argued the cause for respondent. With him on the brief were Bill Mc-Collum, Attorney General, Louis F. Hubener, Chief Deputy Solicitor General, and Timothy D. Osterhaus, Craig D. Feiser, Courtney Brewer, and Ronald A. Latinan, Deputy Solicitors General.
Briefs of amici curiae urging reversal were filed for the American Bar Association by H. Thomas Wells, Jr., and Lawrence A Wojcik; for the American Psychological Association et al. by Danielle M. Spinelli, Anne Harkavy, Shirley C. Woodward, Nathalie F. P. Gilfoyle, Richard G. Taranto, Carolyn I. Polowy, and Mark J. Heyrman; for Amnesty International et al. by Constance de la Vega, Michelle T. Leighton, and Neil A F. Popovic; for the Disability Rights Legal Center by Neil M. Soltman and Donald M. Falk; for Educators et al. by John J. Gibbons, Lawrence S. iMstberg, and Jennifer B. Condon; for Former Juvenile Offender Charles S. Dutton et al. by David W. DeBruin; for the Juvenile Law Center et al. by Marsha L. Levick; for the Mothers Against Murderers Association et al. by Angela C. Vigil, William Lynch Schaller, and Michael A. Pollard; for the Sentencing Project by Matthew M. Shors and Shannon M. Pazur; and for J. Lawrence Aber et al. by Stephen M. Nickelsburg.
Briefs of amici curiae urging affirmance were filed for the State of Louisiana et al. by James D. “Buddy” Caldwell, Attorney General of Louisiana, and Kyle Duncan, Appellate Chief, by Richard S. Gebelein, Chief Deputy Attorney General of Delaware, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Gregory F. Zoel-ler of Indiana, Jack Conway of Kentucky, Michael A Cox of Michigan, Jim Hood of Mississippi, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, W. A Drew Edmondson of Oklahoma, Thomas W. Cor- bett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Marty J. Jackley of South Dakota, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shurtleffoi Utah, William C. Mims of Virginia, Robert M. McKenna of Washington, and Bruce A. Salzburg of Wyoming; for the National District Attorneys Association by Gene C. Schaerr and Linda T. Coberly; for the Solidarity Center for Law and Justice et al. by James P. Kelly III; and for Sixteen Members of the United States House of Representatives by Michael P. Farris.
Briefs of amici curiae were filed for the American Association of Jewish Lawyers and Jurists et al. by Michael B. de Leeuw; for the American Medical Association et al. by E. Joshua Rosenkranz; for the Center on the Administration of Criminal Law by Richard K. Willard and Anthony S. Barkow; for the Center for Constitutional Jurisprudence by Anthony T. Caso, Edwin Meese III, and John C. Eastman; for the Council of Juvenile Correctional Administrators et al. by Corrine A. Irish; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; for the NAACP Legal Defense & Educational Fund, Inc., et al. by John A. Payton, Debo P. Adegbile, Christina Swarns, Jin Hee Lee, Vincent M. Southerland, Charles J. Ogletree, Jr., Robert J. Smith, and Jeffrey L. Fisher; and for the National Organization of Victims of Juvenile Lifers et al. by Shannon Lee Goessling.
Per Curiam.
The writ of certiorari is dismissed as improvidently granted.
It is so ordered.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_fedlaw
|
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 statute, and if so, whether the resolution of the issue by the court favored the appellant.
Nancy Corinne DYER and J. Raymond Dyer, Petitioners, v. SECURITIES AND EXCHANGE COMMISSION, Respondent.
No. 16451.
United States Court of Appeals Eighth Circuit.
May 10, 1961.
Rehearing Denied June 26, 1961.
J. Raymond Dyer, St. Louis, Mo., for petitioners.
Arthur Blasberg, Jr., Attorney, Securities and Exchange Commission, Washington, D. C., for respondent.
Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.
JOHNSEN, Chief Judge.
The Securities Exchange Act of 1934 made it unlawful for anyone to solicit proxies “in respect of any security (other than an exempted security) registered on any national securities exchange in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U.S.C.A. § 78n(a).
Similarly, the Public Utility Holding Company Act of 1935 made it unlawful to solicit proxies as to any registered holding company “in contravention of such rules and regulations or orders as the Commission deems necessary or appropriate in the public interest or for the protection of investors or consumers”. 15 U.S.C.A. § 791(e).
To effectuate § 78n(a), the Commission promulgated its Regulation 14, consisting of Rules 14a-l to 14a-ll, 17 CFR §§ 240.14a-l to 240.14a-ll. This regulation requires a filing to be made with the Commission of the proxy statement, form of proxy and other material intended to be used for a solicitation and contemplates an administrative processing thereof, without formal hearing, on such examination, correspondence, conferences, comments, suggestions, or other incidents as the Commission or its Staff may choose to engage in.
There is a provision in the regulation for a privilege in stockholders to have proposals and statements in support thereof included in management’s proxy material, but matters relating to elections to office are excepted from the general privilege. Conditions also are set out under which management may refuse to include proposals. But where “management asserts that a proposal and any statement in support thereof may properly be omitted from the proxy statement and form of proxy, it shall file with the Commission * * * a copy of the proposal and any statement in support thereof as received from the security holder, together with a statement of the reasons why the management deems such omission to be proper in the particular case, and, where such reasons are based on matters of law, a supporting opinion of counsel”. Management further must forward a copy of such statement and counsel opinion to the security holder, with notice of its intention to omit the proposal.
If the Commission regards the omitting of some proposal as not being warranted under its regulations and so advises management or makes suggestion in respect thereto which is unheeded, it may sue for an injunction in a federal district court to prevent management from engaging in the proposed solicitation in violation of the regulations, or from voting the proxies so obtained. See e. g. Securities and Exchange Commission v. May, 2 Cir., 229 F.2d 123, 55 A.L.R.2d 1123; Securities and Exchange Commission v. Transamerica Corporation, 3 Cir., 163 F.2d 511.
For purposes of effectuating § 79Z(e), the Commission promulgated its Rule 61, 17 CFR § 250.61, providing in relevant substance that the solicitation of proxies as to a registered holding company shall be subject to the provisions of its Regulation 14, supra, under the Securities Exchange Act. It further promulgated its Rule 62, 17 CFR § 250.62, providing that no solicitation of any authorization in connection with any reorganization subject to the approval of the Commission or in connection with any other transaction which is or will be the subject of an application or declaration filed with the Commission shall be made except pursuant to a declaration with respect to such solicitation which is allowed to become effective in the manner prescribed by the Rule.
The language, “in connection with any other transaction which is * * * the subject of an application or declaration”, manifestly covers all matters which the statute expressly mandates must be made the subject of a declaration — as, for example, under 15 U.S.C.A. § 79f(a), the issuance or sale by the corporation of some of its capital stock, or the exercising of any privilege or right to alter priorities, preferences, voting power, or other rights of an outstanding security.
The solicitation of proxies, however, as to the ordinary incidents of a stockholders’ meeting would not on this basis come within the operation of Rule 62, since the statute does not impose the requirement of a declaration or application or make other prescription as to this field, but leaves it wholly to the regulatory authority of the Commission. And under Rule 61, which the Commission has promulgated for purposes of proxy solicitations generally which are within its jurisdiction, there is merely a requirement, as indicated above, for an informal filing of the proposed proxy material and any matter relating to management’s omission therefrom of proposals submitted by stockholders, with indication to be made of the date when the use of the proxy statement and proxy form is intended to become effective.
The Commission has, however, in practice, exercised its discretion to remove a proxy solicitation from the operation of Rule 61 and to subject it by special order to the application of Rule 62, when it has deemed it desirable to afford the opportunity for a hearing in some particular situation.
Thus, in 1957, after petitioners here (father and daughter, holders of 250 shares in the 11% million shares of voting stock outstanding in Union Electric Company) had become stockholders and sought to make objections and submit proposals as to management’s proxy material for the stockholders’ annual meeting of that year, the Commission saw fit to enter an order subjecting the situation to the application of Rule 62 and the according of a hearing thereon. On a similar array of objections and proposals being made by petitioners to management’s proxy material for the stockholders’ meeting of 1958, the Commission entered another such special order for that year. Petitioners came back with a third barrage of objections and proposals to management’s proxy material for the year 1959, and the Commission once more exercised its discretion to deal with the situation under Rule 62 and to accord an opportunity for hearing.
In all of these situations, petitioners just as tenaciously sought review before us of the Commission’s holdings against them, and we have successively made af-firmances of each, of the orders which the Commission had entered. See Dyer v. Securities and Exchange Commission, No. 15,765, 8 Cir., 287 F.2d 773; Dyer v. Securities and Exchange Commission, No. 15,989, 8 Cir., 266 F.2d 33; Dyer v. Securities and Exchange Commission, No. 16,205, 8 Cir., 289 F.2d 242.
Petitioners have also in this short period challenged before us another order of the Commission, which permitted Union Electric to make offering and sale to its common stockholders of some additional shares of its unissued stock. This order too we found to be without basis for the attack which petitioners launched against it. See Dyer v. Securities and Exchange Commission, No. 16,347, 8 Cir., 290 F.2d 534.
There is now before us an attack upon the Commission’s action as to the proxy material of management and the proposals submitted by petitioners in relation to the annual meeting of 1960. Management, in regular course, as it had done in the past, made filing of this material in accordance with Rule 61. After three successive years of the same kind of fruitless and impositional experience with petitioners from having tolerantly granted them hearings under Rule 62, the Commission saw fit to deal with management’s 1960 proxy material and petitioners’ submitted proposals on the basis of Rule 61, with mere administrative processing, in accordance with the Commission’s procedure and practice in proxy situations generally.
Communication was engaged in with both petitioners and management in respect to petitioners’ proposals. Two of the ten proposals made by petitioners were included by management in its proxy statement and form at the Commission’s suggestion. The other 8 were omitted from the proxy, but their general nature was set out by management in the notice of the meeting and it was indicated that they would be subject to being acted upon, should petitioners see fit to bring them before the meeting.
Petitioners, however, did not want the matter so processed, and they made request of the Commission that it handle the situation under Rule 62 and again hold a hearing on all their proposals. The Commission advised petitioners that it would not grant this request, and, subsequent to the administrative processing in which it engaged, management made solicitation on the basis of its proxy statement and form, as amended by an adoption of the Commission’s suggestions.
The situation has been brought here by a petition for review under 15 U.S.C.A. § 79x(a). The Commission has moved to dismiss the proceeding, on the ground that whether it chose to deal with the situation under Rule 61 or Rule 62 was a matter for its absolute discretion, which could not be judicially reviewed. It also contends that since the processing under Rule 61 does not involve any formal orders on its part but simply the engaging in such comments, suggestions, or other informal indications as it may choose, which are not made express conditions to a solicitation, as can be done under Rule 62, there is nothing to which a petition for review could be filed. Section 79x(a) grants a right of review of Commission action only as to “an order issued by the Commission”.
Petitioners argue that, when the Commission refused their request for a hearing and advised them to that effect, this was in substance and effect an order of denial of hearing made by the Commission, whose validity or propriety in the circumstances would be subject to being tested by a petition for review.
But even if the Commission’s refusal to grant a hearing be regarded as a denial order, this would not open up the situation to all of the contentions here which the petition for review seeks to raise. Thus, there is no room to argue that such a denial of hearing would ■constitute a deprivation of due process in the situation. Our previous opinions, both in Dyer v. Securities and Exchange Commission, No. 15,765, 287 F.2d 773, and Dyer v. Securities and Exchange Commission, No. 15,989, 266 F.2d 33, have emphasized that “what [petitioners] were seeking to obtain from the Commission by their demands to have inclusions made in management’s proxy materials, was * * * the according of a privilege to them under the Commission’s regulatory powers and not the enforcing of some legal right existing in their stock ownership”, and that, “since privilege not legal right was involved, it was not a situation in which * * * [it] could be argued that * * * hearing was necessary as a matter of due process”. [287 F.2d 779].
The most that there could be a right to have examined would be simply whether the Commission abused its discretion in refusing to hold a hearing. As noted, the Commission takes the position that it had an absolute discretion, not merely a legal one, in respect to whether it would hold a hearing or not.
The statutory language, “as the Commission deems necessary or appropriate”, has been characterized by us as being “legally of the broadest content in its grant of regulatory and administrative power”, Dyer v. Securities and Exchange Commission, No. 15,765, 287 F.2d 773, 779, and as being entitled to have full sweep, especially “in its relation to a * * * privilege, not an inherent stock-ownership right, such as the according of inclusion to some proposal by a stockholder in management’s proxy material— which * * * has its * * * measure not in statutory specification but in delegated judgment as to regulatory need and appropriateness”. Dyer v. Securities and Exchange Commission, No. 16,205, 289 F.2d 242, 245.
In making provision for such a privilege of inclusion of stockholders’ proposals, the Commission was acting within the spirit of the statute but not on the basis of any legislative command imposed upon it. It therefore had the right to make the privilege subject to such terms of availability and mode and extent of enjoyment as it should see fit to impose. The only bounds would be those of traditional legal and administrative concepts, that there could not exist unreasonableness, discriminatoriness, or want of fundamental fair play in relation to what it did.
With mere privilege and not right being involved, the Commission could make the field subject, for general purposes, to purely administrative handling and processing, without any quasi-judicial aspect. Thus, it would not for purposes of the privilege be required to accord a stockholder a formal hearing.
Petitioners argue that this concept is violative of the provision of 15 U.S.C.A. § 79t(c), that “Orders of the Commission under this chapter shall be issued only after opportunity for hearing”. That provision, however, cannot be regarded as having application to purely administrative actions, which are without any quasi-judicial aspect either inherently or by legislative prescription. For example, an order of the Commission directing that management’s proxy material and proposals submitted by a stockholder should in a particular situation be made the subject of a declaration under Rule 62, instead of simply being processed under Rule 61, could hardly be contended to require an opportunity for hearing under § 79t(c) before the order would be entitled to be made.
We conclude our disposition of petitioners’ contention that Rule 61 should be held to be invalid in its application to the Public Utility Holding Company Act because of the provision of § 79t(c), by a repetition of our expression in one of petitioners’ previous eases: “Since privilege not legal right was involved, it was not a situation in which the statute could be said to have made an absolute requirement for a hearing, nor could it be argued that it was one in which hearing was necessary as a matter of due process”. Dyer v. Securities and Exchange Commission, No. 15,765, 287 F.2d 773, 779.
Hence, as indicated above, we think the Commission validly could limit the administration of the proxy-inclusion privilege to the process provided for in Rule 61. Had its regulations so done, there could be no possible basis for a complaint, such as petitioners make here, that they were improperly denied a hearing. But the regulations did not make such an absolute circumscription as to the administration of the privilege. They provided a door for the discretionary granting or requiring of a hearing by the Commission, through a use of the provisions of Rule 62 instead of Rule 61 as to a particular situation.
Two procedural channels for processing proposals submitted by stockholders thus were constituted by the regulations. Recognition was thereby made that there could be situations in which the Commission would feel that a hearing was needed, and the regulations were framed to make clear the Commission’s right to exercise this discretionary choice.
In these circumstances, there could be basis to contend that the way had impliedly been left open for a request to be made of the Commission to exercise its discretion to process a situation under Rule 62 so as to afford the opportunity for a hearing, and that the Commission could not in that event engage in an arbitrary or discriminatory exercise of that discretion but had to do so responsibly.
We said on this aspect in Dyer v. Securities and Exchange Commission, No. 15,765, 287 F.2d 773, 780: “Had the Commission refused to hold a hearing, it would have had to be demonstrated that the situation was one where, from its nature or circumstances, it was an abuse of discretion for the Commission not to have held a hearing, in order properly [to be able] to arrive at the facts or soundly to be able to exercise judgment on necessity or appropriateness as to the privilege”.
Ordinarily, the requirements of the regulations as to the statement entitled to be made in support of a submitted proposal and the statement required to be made by management in its opposition thereto, read in conjunction with the proposal itself, would enable the Commission to make responsible exercise of its power of judgment and discretion on necessity and appropriateness in relation to the particular privilege being sought. Only in some extreme or special situation could there at all be any basis to contend that, within the power of discretion which it had provided itself, the Commission should have held a hearing in order to enable it to engage in responsible judgment, and that its refusal to hold one therefore was an abuse of such discretion.
In this connection, however, it should be borne in mind that, as indicated above, such duty as the Commission could have to hold a hearing by virtue of the discretion which it had chosen to vest in itself, would not be a matter of procedural obligation owed to the proposing stockholder but a matter of the proper exercise of administrative responsibility by it in relation to what it had expressly or impliedly imposed upon itself by its regulations.
Here, however, on the face of petitioners’ proposals and the statements relating thereto, as contained in the petition for review, and in their setting of the previous cases and the Commission's rulings therein, we are unable to see any basis whatever on which it could be contended that an abuse of discretion was capable of existing in the Commission’s refusal to hold a hearing.
There could be no need to grant a hearing on a proposal which was in substance simply a renewal of a matter on which the Commission had passed in previous years.
There could be no occasion to grant a hearing on petitioners’ attempt to convert the stockholders’ meeting into a judicial forum to have a resolution of purported declaratory judgment adopted, on an accusation that the directors had made illegal stock profits, that the directors were “required to pay over to the company all the profit they derived.” If there had been illegal profits, 15 U.S.C.A. § 79q(b) contained provision for the remedy: “Suit to recover such profit may be instituted at law or in equity in any court of competent jurisdiction by the company entitled thereto or by the owner of any security of such company in the name and in the behalf of such company * *
The directors would be entitled to their day in court on any such charges made under § 79q(b), and the Commission could properly deny the privilege of using management’s proxy material to solicit votes for such an incompetent legal declaration. Petitioner J. Raymond Dyer is a lawyer, so that he could not be in ignorance of the legal irrelevance, and impropriety of what he was seeking to have done.
Nor could the Commission be asked to hold a hearing on such absurd and baseless proposals as that the stockholders who subscribed for the stock involved in Dyer v. Securities and Exchange Commission, No. 16,347, 290 F.2d 534, had been overcharged and should have a refund made to them of 10^ per share; that the stock involved in that case which had been sold to employees of the company should be recalled and invalidated by the directors; and that the directors should be required to reimburse the company for all the dividends paid on such employees’ stock.
No more would the Commission be obliged to hold a hearing on such proposals and statements as that the directors “are hereby censured for malfeasance in office”; that they “should not only be censured they should be expelled”, etc. We have previously upheld the Commission’s exclusion of such proposals and statements from management’s proxy material as representing campaign material on the part of petitioners against such directors’ reelection to office and therefore not being within the privilege of Rule 14A-8,17 CFR § 240.14a-8, under the express provision that “This section shall not apply, however, to elections to office”. Dyer v. Securities and Exchange Commission, No. 16,205, 289 F.2d 242, 247.
On the face of the petition for review as related to the Commission’s holdings in the previous cases on which we have passed, there plainly was nothing that could responsibly call for the Commission to grant a hearing as a matter of being able to arrive at salient facts or being able to exercise rational judgment on necessity or appropriateness in the immediate situation. We might again remind of our closing language in Dyer v. Securities and Exchange Commission, No. 15,765, 287 F.2d 773, 783, “that the proxy inclusion-and-expression privilege is an element of regulation and not of license in corporate democracy, and that, whether in general or particular situation, its measure or scope lies in the legislative language ‘as the Commission deems necessary or appropriate’, unless the Commission acts without rational basis or without fair play”.
The Commission’s refusal to grant a hearing is here entitled to summary af-firmance.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_casetyp1_7-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Laura GASPAR and Ken Nykiel, Plaintiffs-Appellees, v. DOWELL DIVISION, DOW CHEMICAL COMPANY and ABC Insurance Company, Defendants-Appellants.
No. 83-3667.
United States Court of Appeals, Fifth Circuit.
Jan. 17, 1985.
Lemle, Kelleher, Kohlmeyer & Matthews, Richard B. Foster, New Orleans, La., for defendants-appellants.
Conner & Martinez, Joseph P. Williams, Jr., Metairie, La., for plaintiffs-appellees.
Before GEE, POLITZ and HIGGIN-BOTHAM, Circuit Judges.
GEE, Circuit Judge:
Laura Gaspar and Ken Nykiel (the “plaintiffs”) brought this action against Dowell Division, Dow Chemical Company (Dow) and its insurer ABC Insurance Company alleging that one of Dow’s boats damaged a boat that the plaintiffs claim to own. After a bench trial the district court found for the plaintiffs and awarded them $18,000 in damages. We reverse.
I.
This case arises out of a collision that allegedly occurred between a tug owned by Dow and a boat docked alongside the plaintiffs’ shrimp boat, known as the MISS CONDUCT or the MARINA MAE. In the fall of 1981 the MISS CONDUCT was continuously moored to a cement slab on the Doullute Canal at Empire, Louisiana. The M/V SAND BAY was moored alongside the MISS CONDUCT and the M/V CHERYL LEE was moored outboard of the M/V SAND BAY. Laura Gaspar’s brother Michael was living aboard the MISS CONDUCT during this time.
The M/V CANDICE L was a 59-foot, 900-horsepower model bow tug operated by Dow. On December 9, 1981, she was in command of a licensed operator, Captain V.J. Copous, pushing a 135-foot work barge and returning to her Venice, Louisiana, base after completing a job on a drilling rig in Grand Bastion Bay. As the CANDICE L was transiting the Doullute Canal into the Mississippi River and approaching the Empire Locks, Captain Copous had to wait for a supply boat locking through in the other direction. Captain Copous stopped the barge on the right bank of the Doullute Canal, holding the bow of the barge against the bank. The CANDICE L was at least 200 feet away from the MISS CONDUCT and the other boats moored alongside the concrete dock.
After the supply boat had passed, Captain Copous “twin screwed” the barge out into the canal. This involved putting the starboard engine ahead and the port engine in reverse to pivot the barge sideways into the canal. The CANDICE L was not required to back up during this maneuver.
Once the CANDICE L had entered the Empire Locks, Michael Gaspar appeared on the lock wall and shouted at Captain Copous. Captain Copous invited Gaspar aboard. Gaspar said that he had been sleeping aboard the MISS CONDUCT when he was awakened by a bump, looked out of the cabin, and saw the CANDICE L in the locks. Gaspar accused Copous of backing into the CHERYL LEE. Although Copous did not believe he could have hit the CHERYL LEE, Copous sent his wheelman, Ted Terrebonne, back with Gaspar to investigate.
Gaspar took Terrebonne to the three boats tied up at the cement slab and told Terrebonne that the CANDICE L had struck the CHERYL LEE, the outside vessel. Terrebonne went aboard the CHERYL LEE but saw no evidence of a collision, and Gaspar pointed out no specific damage to the boat. Gaspar did not ask Terrebonne to inspect either the SAND BAY or the MISS CONDUCT.
After Terrebonne left and the CANDICE L resumed her journey, the MISS CONDUCT began to take on water. This activated the boat’s automatic bilge pumps, but these pumps were unable to remove the water fast enough to prevent the boat from sinking. The MISS CONDUCT continued to take on water, sinking six days after the incident with the CANDICE L. Aside from borrowing a gasoline pump several days after the alleged collision to attempt to pump out the MISS CONDUCT, Gaspar did nothing to prevent the boat from sinking, nor did he or the plaintiffs attempt to raise the MISS CONDUCT for repairs. Aside from filing a Coast Guard report the day after the incident, neither Gaspar nor any plaintiff did anything about the sunken MISS CONDUCT until the plaintiffs filed this action in the district court thirteen months after the alleged collision occurred.
In their complaint the plaintiffs alleged that the CANDICE L had collided with the CHERYL LEE, causing the CHERYL LEE to strike the SAND BAY and the SAND BAY to strike the MISS CONDUCT. Dow maintained that no collision occurred. After a bench trial the district court found that the CANDICE L had collided with the CHERYL LEE and had caused the MISS CONDUCT to sink. The court awarded the plaintiffs $18,000 in damages despite uncontroverted expert testimony that the MISS CONDUCT was worth only $2,500. This appeal followed.
II.
Dow contends that the district court erred in finding that the CANDICE L struck the CHERYL LEE and damaged the MISS CONDUCT. Under rule 52(a) of the Federal Rules of Civil Procedure, we may not set aside a district court’s findings of fact unless the findings are “clearly erroneous.” This rule applies to actions in admiralty in the same manner as it applies to other civil actions. Guzman v. Pichirilo, 369 U.S. 698, 702, 82 S.Ct. 1095, 1098, 8 L.Ed.2d 205, 209 (1962); Union Oil Co. of California v. Tug MARY MALLOY, 414 F.2d 669, 670 (5th Cir.1969).
Applying the clearly erroneous standard and following rule 52(a)’s requirement of giving “due regard ... to the opportunity of the trial court to judge the credibility of the witnesses,” we conclude that the district court erred in finding that the CANDICE L collided with the CHERYL LEE. All of the evidence presented at trial suggests that no collision occurred. The plaintiffs’ only witness who was at the scene of the alleged collision, Michael Gas-par, testified that he did not see the CANDICE L strike the CHERYL LEE. Both Captain Copous and Ted Terrebonne of the CANDICE L testified that they did not believe their boat had struck or could have struck the CHERYL LEE. Because the CANDICE L was engaged in the “twin screw” maneuver at the time the collision allegedly took place, the crew of the CANDICE L likely would have seen any collision occur. Also, under the section of the Coast Guard report titled “Recommendations for Corrective Safety Measures Pertinent to this Casualty,” Gaspar wrote “inforce [sic] strict wake law.” This suggests that Gaspar did not believe that a collision involving the CANDICE L was responsible for the damage to the MISS CONDUCT. Gaspar’s speculative testimony regarding the collision is the only evidence presented at trial to support the court’s conclusion that a collision occurred. We hold that this evidence is not sufficient to support a finding for the plaintiffs on this issue.
III.
Dow also contends that the district court clearly erred in finding that the value of the MISS CONDUCT was $18,000. The plaintiffs testified at trial that Ken Nykiel purchased the MISS CONDUCT for a Harley-Davidson motorcycle worth $5,000 and $15,000 cash. The plaintiffs, however, produced no bill of sale reflecting this transaction. See supra note 1. Dow called Robert L. Stickney, an experienced marine surveyor, as an expert witness. Mr. Stickney testified that he had examined the MISS CONDUCT, that the boat was unsuitable for shrimping in Louisiana waters, and that the value of the MISS CONDUCT before she sank was approximately $2,500. Aside from their testimony regarding the MISS CONDUCT’S purchase price, the plaintiffs produced no evidence suggesting that the MISS CONDUCT was worth more than $2,500. Nevertheless, the district court discredited the testimony of Dow’s expert and found that the MISS CONDUCT’S value was $18,000, stating that the motorcycle given in exchange for the boat was worth only $3,000.
We agree with Dow that the district court erred in finding the MISS CONDUCT worth $18,000. The correct measure of damages in suits involving injuries to personal property is not the purchase price of the chattel, but the amount necessary to restore the damaged property to the same condition as existed immediately before the injury occurred. City of New Orleans v. American Commercial Lines, Inc., 662 F.2d 1121, 1124 (5th Cir.1981). The plaintiffs presented no evidence regarding the value of the MISS CONDUCT immediately before the alleged collision. Although the district court as a finder of fact was free to discredit the testimony of Dow’s expert, the plaintiffs’ scant evidence did not provide the court with a sufficient basis to conclude that the MISS CONDUCT was worth $18,000 immediately before sinking.
IV.
Even if the plaintiffs had'presented sufficient evidence to support a verdict in their favor on the collision and valuation issues, the plaintiffs would not be entitled to their judgment because of their entire failure to mitigate damages. The law is well settled that a vessel owner has a duty to minimize damages to the vessel. See, e.g., Southport Transit Co. v. Avondale Marine Ways, 234 F.2d 947, 954 (5th Cir. 1956); Todd Shipyards Corp. v. Turbine Service, Inc., 467 F.Supp. 1257, 1300 n. 26 (E.D.La.1978), aff'd in part & rev’d in part, 674 F.2d 401 (5th Cir.), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982); In re Sincere Navigation Corp., 327 F.Supp. 1024, 1026 (E.D.La.1971). See generally Restatement (Second) of Torts § 918 (1977) (“One injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort.”). Here, aside from a single attempt to pump water out of the MISS CONDUCT, the plaintiffs made no attempt to keep the boat from sinking, even though the MISS CONDUCT remained afloat for six days after the alleged collision. After the boat sank, the plaintiffs simply allowed the MISS CONDUCT to remain on the bottom of the canal, refusing to pay the approximately $300 a shipyard across the canal would have charged to raise and repair the boat. Although the plaintiffs contend that they had insufficient funds to finance the repair of the MISS CONDUCT, Laura Gaspar’s 1981 federal income tax return indicates that her tattoo business generated a cash flow that would have enabled her to make the repairs. We cannot permit the plaintiffs to recover for damage to the MISS CONDUCT that the plaintiffs could have avoided with a minimal expenditure of time and money.
For the foregoing reasons, the judgment of the district court is reversed and judgment is here rendered for the appellant.
REVERSED.
. Although the issue was not addressed at length at trial, there is apparently some dispute as to whether the plaintiffs actually own the MISS CONDUCT. The plaintiffs testified that Ken Nykiel purchased the MISS CONDUCT from Daniel Tharp in October 1981 for a Harley-Davidson motorcycle worth $5,000 and $15,000 cash, with Laura Gaspar furnishing the motorcycle (which belonged to her "old man” Bama) and $5,000 cash. The plaintiffs, however, produced no bill of sale for this transaction. The plaintiffs later prepared a handwritten document that indicated Laura Gaspar's half interest in the boat. This document bears a notarial seal dated November 10, 1981. Furthermore, although Laura Gaspar claimed to have borrowed some of the cash she used to purchase the MISS CONDUCT and to have taken the rest from her tattoo business, her 1981 federal income tax return shows net losses from her tattoo shops and insufficient income to account for the investment. Nykiel produced no financial records.
. In the following exchange at trial, Copous, under examination by the court, "admitted" that he was not absolutely certain at the time that the CANDICE L did not strike the CHERYL LEE:
Q. Okay. Captain Copous, I believe you testified in response to Mr. Foster’s question that you did not hit any other boat, is that correct?
A. That’s correct, sir.
Q. If that is the case why did you send your deckhand back with Mr. Gaspar to inspect—
A. That is normal procedure with my company and with myself. I always want to check things out. I could not leave, sir, without finding out something.
Q. So, in your own mind then you admitted the possibility anyway that the boat could have been struck, is that correct?
A. No, sir, not by me, sir.
Q. Not by you?
A. No, sir.
Q. And the only reason you had for sending the deckhand back to inspect the boats at that time is because it’s company policy?
A. Not necessarily company policy. It’s just a good seamanship to make sure that, you know, on my part and — that is the way I am, I just make sure that everything is in order and I don’t—
Q. Well, if you were sure it was in order, sir, why did you send the deckhand back?
A. Because I wanted to make sure, I don’t know, I do it all the time if I see somebody in trouble I go help them, that is just the way I am, sir.
Q. But you sent the deckhand back you said to make sure that none of the vessels were struck, is that correct?
A. Yes, sir.
Q. So in your own mind you weren’t sure that any of those vessels had been struck?
A. In my own mind, sir. I am sure I didn’t hit it.
Q. I am talking about at the time of this incident.
A. Would you repeat that, sir.
Q. At the time of this incident when you sent the deckhand back to inspect these vessels you were not completely sure that these vessels had not been struck, is that correct?
A. Not by me, sir.
THE COURT: That is not the answer to the question.
THE WITNESS: I am sorry, sir. I didn’t quite understand him.
THE COURT: I have to think that you understand the question. You sent the deckhand back to check it when the guy came up and complained?
THE WITNESS: Yes, sir.
THE COURT: So his question to you at that time since you sent the man back to check it you must have not been sure that it didn’t strike it?
THE WITNESS: Okay, yes, sir, all right.
THE COURT: Were you sure at that time that your vessel did not strike?
THE WITNESS: No, sir, I am not sure.
First Supplemental Record on Appeal at 22-25. This exchange indicates that Copous satisfactorily answered the plaintiffs’ attorney’s question regarding Copous’ state of mind at the time of the alleged collision. When the court told Copous that he had answered incorrectly, Copous apparently became confused and gave the court the answer he believed the court wanted. This "admission” certainly is not persuasive evidence that a collision occurred and does not support a finding for the plaintiffs on this issue.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_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.
THE QUOGUE. NEW YORK, N. H. & H. R. CO. v. LONG ISLAND R. CO. THE TRANSFER NO. 12. LONG ISLAND R. CO. v. NEW YORK, N. H. & H. R. CO.
No. 269.
Circuit Court of Appeals, Second Circuit.
March 2, 1931.
Burlingham, Veeder, Fearey, Clark <% Hupper, of New York City ( (Stanley R. Wright, of New York City, of'eounsel), for appellant.
Haight, Smith, Griffin & Doming, of New York City (James McKown, Jr., and Henry M. Hewitt, both of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
SWAN, Circuit Judge.
The collision occurred about 6:30 a. m. on May 26, 1927, close to the red buoy, referred to in the testimony as the “bug,” which is at the entrance to the Greenville Channel. Li-belant’s steam tug Transfer No. 12 was proceeding with two ear floats, made fast one on each side, from Bay Ridge, Brooklyn, to Greenville, N. J. The Quogue, with a ear float on her port side, was proceeding down the Greenville Channel bound for Long Island City. When the vessels began to navigate with reference to each other, they were some 2,000 feet apart and in position to pass port to port. The Transfer No. 12 blew a single blast to which the Quogue replied with two. The Transfer thereupon blew the alarm, slowed her engines, and again signaled for a port to port passage. To this second signal the Quogue again blew twice and sounded an alarm. The Transfer’s engines were then stopped, and again she blew an alarm and a one-blast signal. The Quogue hauled to port to cross the Transfer’s bow, and, although both vessels reversed their engines before the collision, they did so too late to prevent their tows coming into contact. About three or four minutes elapsed between the Transfer’s first signal and the collision.
The fault of the Quogue was most glaring. Indeed, she makes no attempt to excuse it, but contends merely that damages should be divided because the Transfer did not stop and reverse more promptly. It is a hard rule which requires a master when he sees another vessel about to cross his bow with wanton disregard of his rights to stop and allow the arrogant usurper to pursue his wrongful course. But safety is better than pride; and, however slight the hope that rules to promote safety will be observed under such circumstances, whatever courts may say, the vessels must be judged according to their legal duties.
When the Transfer’s one whistle was crossed for a second time by the Quogue’s two, the former’s master still assumed that the Quogue would not carry out the maneuver .indicated by her signals unless he consented. He was not justified, however, in acting on that assumption; for, as he testified and as he indicated by blowing alarms, there immediately arose a situation of danger provided the Quogue should proceed to execute, as she shortly did, the maneuver indicated by her .signals. His duty as a prudent navigator was not merely to sound the alarm and slow .■and stop his engines, but to get the way off his vessel as promptly as possible. He did not reverse as promptly as he should. He was not privileged to continue on his course nn the chance that the other vessel would (Change her announced purpose if he refused ¡to consent. It is true that the Pilot Rules i(article 18, Rule III, and Inspectors’ Rule I) provide only for sounding the danger signal when one vessel fails to understand the course or intention of another which is approaching ; but, independently of what the Pilot Rules may require, the courts have very definitely declared that there is a duty to stop and reverse as soon as danger of collision is, seen to exist because of doubt as to what the other vessel may do. The New York, 175 U. S. 187, 201, 20 S. Ct. 67, 44 L. Ed. 126; The Albert Dumois, 177 U. S. 240, 252, 20 S. Ct. 595, 44 L. Ed. 751; The Munaires, 1 F.(2d) 13, 15 (C. C. A. 2); A. H. Bull S. S. Co. v. United States, 34 F.(2d) 614, 616 (C. C. A. 2). However great the temptation of the Transfer’s master to refuse to give way to a vessel wantonly insisting on crossing his bow, Ms duty clearly required him to stop and reverse instead of obstinately insisting on his right to a port to port passage. See The Senator Rice, 223 F. 524, 527 (C. C. A. 2).
The appellee relies upon The Victory and The Plymothian, 168 U. S. 410, 18 S. Ct. 149, 42 L. Ed. 519; but there, as stated at page ■426 (18 S. Ct. 156), “The Plymothian acted ■immediately and effectively on hearing the two-blast signal she did hear, and succeeded in stopping her headway.” The Bilbster, 6 F.(2d) 954 (C. C. A. 2), is distinguishable ¡because the approaching vessel sheared unexpectedly across the Stavangaren’s bow without any previous signal to indicate an intention so to do.
Both authority; and sound reason require the damages to be divided but, inasmuch as the fault of the Quogue was so glaring, we shall allow the appellant no costs in this court, although it has prevailed upon the appeal.
The cause is remanded for further proceedings 'in conformity with this opimon.
In A. H. Bull S. S. Co. v. United States (C. C. A.) 34 F.(2d) 614, 615, we inadvertently cited the above-mentioned rules as requiring a vessel, in doubt as to the other’s course, at once “to blow an alarm and back.” The rules do not expressly require more than the alarm. Compare the earlier rule quoted in- The Montauk, 180 F. 697, 698 (C. C. A. 2).
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_source
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
LOCAL 901, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent, Appellant, Raymond J. COMPTON, Regional Director, Etc., Petitioner, Appellee.
No. 5771.
United States Court of Appeals First Circuit.
June 15, 1961.
George L. Weasler, Santurce, P. R., for appellant.
Winthrop A. Johns, Asst. Gen. Counsel, Washington, D. C., with whom Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and James T. Youngblood, Atty., Washington, D. C., were on brief, for appellee.
Before WOODBURY, Chief Judge, and MAGRUDER and HARTIGAN, Circuit Judges.
Sitting by designation.
WOODBURY, Chief Judge.
Editorial El Imparcial, Inc., a Puerto Rican corporation, filed an amended charge with the appellee-Regional Director alleging that the appellant-Union had engaged in and was engaging in unfair labor practices in violation of the secondary boycott provisions embodied in § 8 (b) (4) (i) (ii) (B) of the Labor Management Relations Act, 1947, as amended by § 704 of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 542, 543, quoted in the margin. The appellee-Director, after investigation concluded that there was reasonable cause to believe that the appellant-Union had engaged in the unfair labor practices alleged in the amended charge and that a complaint should issue. He therefore, on behalf of the Board, filed a petition in the court below under § 10(Z) of the Act asking for injunctive relief pending the final adjudication of the matter by the Board. The appellant-Union answered with a general denial and affirmative defenses, and after hearing the court below made findings of fact on the basis of which it entered the order granting injunctive relief from which the Union has taken this appeal.
The facts are as follows. Editorial El Imparcial, Inc., has for many years been engaged in San Juan, Puerto Rico, in the business of publishing a Spanish language daily newspaper called “El Impareial.” Its offices and plant are located in a building owned and operated by another corporation in which in October, 1959, Star Publishing Company, Inc., a Puerto Rican corporation, leased space for use in publishing a daily English language newspaper called “The San Juan Star.” Just prior to commencing publication in November, 1959, Star entered into a one-year contract with El Imparcial under which El Imparcial agreed to print the “San Juan Star” on its presses from mats supplied by Star. Under this contract Star set the type for its newspaper in its own composing room, did its own engraving and prepared its own mats which it took down to El Imparcial’s press room. At that point El Imparcial employees took over, cast the plates, put them in the presses and ran off the paper on Star’s newsprint. Star employees received the printed papers in El Impareial’s mail room where they were bundled partly by Star’s men for distribution by Star employees. Aside from the printing contract there was no relationship whatever between Star and El Imparcial. Both newspapers subscribe to national news services, advertise products imported into Puerto Rico for sale and annually receive substantial amounts of goods and materials, obviously including their newsprint, from outside Puerto Rico.
In consequence of a labor dispute El Imparcial’s employees went on strike on May 26, 1960, and picketed the building in which both it and Star had their offices and the former had its printing plant. From the outset there was violence on the picket line and on May 30 Star’s 124 employees refused to cross the picket line to report for work for fear of personal injury. Negotiations between Star’s president and publisher and lower union officials having come to naught, Star’s president met by appointment with one Chavez, the Union’s regional organizer. At this meeting Chavez said his Union had “nothing against” Star and that the pickets were not stopping Star employees from entering the building and asked what he was expected to do. Star’s president said that he wanted the Union to assure his men that they would not be molested and that they were not in any danger. Chavez promised to give that assurance provided “you will agree that your men will not enter the El Imparcial part of the building, that they will not help El Imparcial in any way, and that you will not use any of El Imparcial’s equipment.” Star’s president and publisher agreed. Thereupon Star ceased having its printing done under its contract with El Imparcial and made arrangements to have its, paper printed on the presses of another newspaper, the “Island Times.” Thereafter Star employees wearing identifying placards entered the building without interference by the pickets.
The court below found that soon after the strike began the Union embarked on a campaign to compel persons to stop advertising in “El Imparcial” and in furtherance of that objective “threatened, coerced and restrained” two advertising agencies engaged in the business of placing advertisements for clients, some of whom were engaged in interstate commerce, and also Goodyear Western Hemisphere Corp. which operated a retail store and re-tread plant in Hato Rey, Puerto Rico, selling a variety of imported goods, and Cerveceria Corona, Inc., a local brewery, “with strike activities or other reprisals” unless they stopped advertising in “El Imparcial.” Basically on these facts the court below found reasonable cause to believe that the Union had and was engaged in acts and conduct in violation of the secondary boycott provisions of the Act cited above and that unless enjoined the acts and conduct were likely to be repeated or continued.
There can be not doubt, indeed the appellant-Union does not seriously dispute, that Chavez’s conduct as agent for the Union had the effect of restraining or coercing Star by requiring it as a condition of continued publication “to cease doing business” with El Imparcial. On this phase of the case the Union’s basic contention is that the affairs of Star and El Imparcial were “so intertwined” that Star was not a “secondary employer” or “neutral” with respect to the Union’s dispute with El Imparcial but that on the contrary Star’s and El Impareial’s business relationship made them “co-employers” or at least “allies.” There is no factual basis for this contention.
The undisputed facts are that Star and El Imparcial are separate and distinct corporations without any common ownership or control and that each has a separate staff and separate employees. Their only relationship was under the contract described above. Star was not performing “struck work” for El Imparcial nor were their businesses so integrated or intertwined operationally that Star was deprived of the protection afforded by the Act. Compare Douds v. Metropolitan Federation of Architects, D.C.S.D.N.Y.1948, 75 F.Supp. 672; Local 24, International Brotherhood of Teamsters, etc., v. N. L. R. B., 1959, 105 U.S.App.D.C. 271, 266 F.2d 675, 680. The fact that Star employees participated in the work of bundling Star papers after they were delivered by El Imparcial employees to El Imparcial’s mailing room or that on occasion El Imparcial performed some extra services for Star as an accommodation does not alter the situation. The plain intent of sub-paragraph (B) of the statute is to prohibit conduct aimed at terminating the very sort of business relationship which existed here.
One prong of the Union’s attack on the District Court’s findings with respect to the two advertising agencies rests on the erroneous assumption that the court found that the respective presidents of the two corporations as individuals were induced or persuaded to cease doing business with El Imparcial. We do not pause to analyse or even state this contention for the court’s actual finding was not that it was the individuals but that it was the corporations represented by those individuals which were threatened, coerced and restrained through pressure applied to their managerial officers which, of course, is the only way pressure could be applied to the corporations. The other prong of the attack is directed to the evidentiary support for the court’s finding that the agencies actually were threatened or coerced.
The evidence in outline as to one of the agencies, Highley-Soria Advertising Co., is that a person identifying himself as “Chavez of the Teamsters” called that agency’s president on the telephone and, using strong language, mentioned the strike and “questioned placing advertising in ‘El Imparcial.’ ” When the agency’s president said he did not wish to discuss the matter over the telephone but would be happy to talk it over in his office, the speaker called the agency’s president a foul name, said that he would close the agency, call strikes against its clients and picket the agency.
The Union contends that this evidence was improperly admitted for failure to identify Chavez as the speaker over the telephone and the same contention is made with respect to the admission of evidence of another similar telephone call made to the manager of the Goodyear store. But no objection was made in the court below to the admission of evidence of either of these telephone calls. Objection for the first time in this court comes too late for it is now too late to cure the objection by introducing other evidence of the identity of the one who called on the telephone, perhaps by calling Chavez himself to the witness stand. The rule that objectionable evidence must be objected to at the trial is not a technical one. Its purpose is to afford the one who offers the evidence an opportunity at the trial to cure the objection and so obviate the necessity for another trial. The rule is both elementary and for obvious reasons eminently practical.
The Union’s contention as to the other advertising agency and also the Goodyear store is that the evidence does not warrant a finding that either was “threatened, coerced and restrained” as the court below found, but at the most warrants only a finding that they were induced or persuaded not to advertise in “El Imparcial.” The line between threats, coercion and restraint on the one hand and mere persuasion on the other is not always easy to draw and cannot by any means always be drawn by reference only to the words used. Words innocuous in themselves can take on a sinister meaning in the context in which they are uttered. Thus, although the words used to the managing officer of this advertising agency and of the Goodyear store, in vacuo, may have been innocent, in the context of the bitter labor dispute with El Imparcial in which the words were spoken they can reasonably be regarded as ominous. The construction put on the words by the court below was not clearly erroneous.
The finding that the Union induced or encouraged the employees of Cervecería Corona, Inc., to engage in a work stoppage to coerce their employer to stop advertising in “El Imparcial” rests upon the wording of handbills which the Union freely admits circulating at the brewery. These handbills first called attention to the strike at El Imparcial saying that it “continues strong and vigorous,” and then in scathing terms characterized El Imparcial’s president as the “most antilabor employer in all Puerto Rico and maybe in all America.” The handbill then continues; “We believe that every person who buys El Imparcial and every advertiser who advertises in this newspaper is helping to weaken the strike for he is cooperating with the most monstrous employer in Puerto Rico.” After this the handbill points out that Cervecería Corona is still advertising in “El Imparcial” “although the ad does not produce anything since El Imparcial IS NO GOOD and circulates little,” and then concludes:
“ * * * You, the fellow workers of Corona, know what this means. If some day you have differences with the employer, El Imparcial will be against you. For that reason, because of the fellowship that should unite all of us workers, we are asking you to insist with Corona so that it doesn’t advertise in El Imparcial, because it is equivalent to contributing to break a strike and because other means produce better results. We, the strikers of El Impareial, will help you at any time you need our help. Help us keep our movement, which is yours, strong.
Fraternally, Strike Committee of El Imparcial.”
The encouragement of strike action by Corona’s employees to force their employer to cease advertising in “El Imparcial” is at the best only thinly veiled in the statement “ * * * we are asking you to insist (italics supplied) with Corona so that it does not advertise in El Imparcial * * In the context of the strike accompanied by violence, of which there is ample evidence, at El Imparcial’s place of business the court below did not err in reading the handbill as having that proscribed purpose.
In summary it will suffice to say that we find ample evidence to support the findings made by the court below.
Judgment will be entered affirming the order of the District Court.
. “8(b) It shall be an unfair labor practice for a labor organization or its agents' — -
“4(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in any industry affecting commerce, where in either case an object thereof is—
* * sj« * #
“(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person * * 29 U.S.C.A. § 158(b) (4) (i, ii) (B).
. Also, occasionally when there was a rush job El Imparcial made photo-engravings and line cuts for Star; and until Star obtained a shaver for shaving flat castings this was done at the El Imparcial plant.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_confess
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that a confession or an incriminating statement was improperly admitted? Consider only incriminating statements made by the defendant." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Appellee, v. SMITH GRADING AND PAVING, INC. and Herbert P. Lee, III, Appellants. UNITED STATES of America, Appellee, v. DELLINGER, INC. and Theodore C. Dellinger, Appellants.
Nos. 84-5130, 84-5131.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 8, 1985.
Decided April 22, 1985.
E. LeRoy Nettles, Sr., Lake City, S.C. (Marian D. Nettles, Nettles, Floyd, Turbeville, & Reddeck, Lake City, S.C., on brief), for appellants in No. 84-5130.
William Reynolds Williams, Florence, S.C. (Mark W. Buyck, Jr., Willcox, Hardee, McLeod, Buyck & Baker, Florence, S.C., on brief), for appellants in No. 84-5131.
(Richard S. Clark, Clark & Griffin, Monroe, N.C., on brief), for appellant.
Robert J. Wiggers, Robert B. Nicholson, J. Paul McGrath, Asst. Atty. Gen., Charles F. Rule, Deputy Asst. Atty. Gen., Carl W. Mullís, III, Katherine A. Schlech, Bargery .G. Williams, Dept, of Justice, Washington, D.C., on brief), for appellee.
Before PHILLIPS, and WILKINSON, Circuit Judges, and RICHARD L. WILLIAMS, District Judge, Sitting by Designation.
RICHARD L. WILLIAMS, District Judge:
This case involves a six count indictment brought against four defendants for bid rigging a sewer construction project in Lancaster County, South Carolina. The Farmers Home Administration funded the four part sewer project.
Defendant Herbert P. Lee, III is an employee of defendant Smith Grading and Paving Inc. [Smith Grading] and is responsible for the company’s bids on all utility-related projects. Defendant Theodore C. Dellinger is the president of defendant Del-linger, Inc. and is responsible for his company’s bids. All four defendants were charged, in Count 1 of the indictment, with conspiring with unnamed co-conspirators to rig bids on the Lancaster County, South Carolina sewer project in violation of § 1 of the Sherman Act, 15 U.S.C. § 1. Counts 2 and 3 charged Dellinger and Dellinger, Inc. with submitting false statements in their bids in violation of 18 U.S.C. § 1001. Counts 4, 5 and 6 charged Lee and Smith Grading with filing false statements.
At trial the jury found the defendants guilty on all counts. On appeal defendants claim eleven reversible errors.
FACTS
Viewing the evidence in the light most favorable to the government, the prosecutor’s case at trial established the following facts. On December 19, 1978 eleven companies submitted bids on one or more of the four parts of the Lancaster County sewer project. Frank Carpenter, representing Dickerson, Inc., was the low bidder on part 1, while B.S. Zeigler, representing Boozer and Wharton, Inc., successfully bid on part 2. Defendants Dellinger Inc. and Smith Grading were, respectively, the low bidders on parts 3 and 4 of the construction project.
Carpenter and Zeigler turned states evidence and testified as to the bid rigging scheme. According to their testimony, all four successful bidders stayed at the Carriage Inn in Lancaster County the night before the bid submission. After dinner, the four met in Zeigler’s room, at which time Carpenter proposed that they rig the sewer construction project. Each man was to be the low bidder on one of the four parts of the job. According to both Carpenter and Zeigler, defendants Lee and Dellinger concurred with the plan. The men exchanged figures and contacted other potential bidders. Telephone records and the amount of the bids corroborated the testimony.
DISCUSSION
Defendants’ most significant claim on appeal involves the admissibility of extrinsic evidence of defendant Dellinger’s prior bid rigging activities. On cross-examination the prosecutor asked Dellinger if he previously rigged a project in Kensington, South Carolina. Dellinger denied the allegation. The district court then allowed the government to present a rebuttal witness who testified that Dellinger participated in the Kensington bid rigging scheme. On appeal defendants argue that the trial court violated Federal Rule of Evidence 608(b) when it admitted the rebuttal evidence. Rule 608(b) prohibits a party from offering extrinsic evidence to prove specific instances of conduct for the purpose of attacking or supporting a witness’s credibility.
In response, the government argues that the trial court properly admitted the evidence of Dellinger’s past misconduct under Federal Rule of Evidence 404(b). Rule 404(b) allows a trial court to admit evidence of other crimes or wrongs if (1) it is offered for a purpose other than to prove a defendant’s criminal character or propensity to commit the crime charged, and (2) the probative value of the evidence outweighs its prejudicial effect. United States v. Tate, 715 F.2d 864 (4th Cir.1983). In this case, the government argues that the rebuttal evidence of Dellinger’s participation in the Kensington bid rigging scheme is relevant to the defendant’s intent to enter a conspiracy to rig bids as well as his understanding of the nature of the scheme. It further argues that the disputed evidence is more probative than prejudicial.
As a preliminary matter, we acknowledge that the evidence at issue falls within the scope of both rules 608(b) and 404(b). The government’s proof of Dellinger’s participation in the earlier bid rigging scheme took the form of extrinsic evidence attacking a witness’s credibility. The government did not have to accept the defendant’s denial of participation. Yet, likewise, the evidence of Dellinger’s prior bid rigging is relevant to his intent and knowledge of the charged conspiracy, which are material issues raised in Count 1 of the indictment. United States v. United States Gypsum Co., 438 US. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). Under an abuse of discretion standard, the trial court did not err when it determined that the disputed evidence was more probative than prejudicial, for the close relationship between the prior illegal activity and the charged offense is probative of Dellinger’s knowledge. United States v. Marques, 600 F.2d 742, 751 (9th Cir.1979).
Given the fact that the evidence of Dellinger’s earlier bid rigging falls within the scope of both rules, we must decide whether rule 404(b) takes priority over rule 608(b). All of the circuit courts presented with the conflict between the rules have held, at least implicitly, in favor of rule 404(b). These courts have allowed the admission of evidence of past bad acts, offered for a purpose other than to prove a defendant’s bad character or propensity to commit a crime, despite the fact that the evidence came in after the defendant denied the misconduct on cross-examination. See United States v. Jacobson, 578 F.2d 863 (10th Cir.1978); United States v. Batts, 558 F.2d 513 (9th Cir.1977) vacated 573 F.2d 599 (9th Cir.1978), cert. denied 439 U.S. 859, 99 S.Ct. 178, 58 L.Ed.2d 168 (1979); United States v. Herzberg, 558 F.2d 1219 (5th Cir.1977).
We agree with the other circuits. Rule 608(b) should not be read so broadly as to disallow the presentation of extrinsic evidence that is probative of a material issue in a case. Undoubtedly rule 404(b) will undermine the purpose of rule 608(b) in particular circumstances, such as those presented in this case. However, the ultimate goals of the rules of evidence are best served by not reading any rule in isolation. In light of the need to introduce probative evidence of material issues and, even more importantly, in light of the goal of ascertaining the truth in judicial proceedings, we affirm the trial court’s admission of rebuttal testimony of prior bad acts, over the defendant’s denial, given that the testimony satisfies the requirements of rule 404(b).
One consequence of our decision is it allows the government to present rule 404(b) evidence on rebuttal. We want to make clear, however, that the better practice is for the prosecutor to introduce this type of evidence in his or her case in chief. In most instances, evidence of a defendant’s past bad acts will surface prior to trial on a motion in limine. At that time, on a proffer by the government, the trial court must determine whether the evidence is relevant, is admissible under rule 404(b), and whether the evidence is more probative than prejudicial.
However, if the government attempts to introduce past bad acts through cross-examination of the defendant or on rebuttal, the trial court should also determine whether the evidence is cumulative or necessary to prove an essential element of the crime charged. If the evidence is cumulative, the trial court should more closely scrutinize its prejudicial effect. If the evidence is necessary to prove an element of the charge, the trial judge may have erred in not sustaining the defendant’s motion for a directed verdict of acquittal. Moreover, a defendant may have a valid objection, under federal rule 611(b), that the government’s cross-examination exceeds the scope of the direct. These added considerations are necessary not only to limit the impact of rule 404(b) on rule 608(b), but also to limit the prejudicial effect of allowing the government to have the last say through evidence of a defendant’s prior misconduct.
With these guidelines, we affirm the trial court’s admission of rule 404(b) evidence over the defendants’ 608(b) objection and now turn to the ten other claims raised by the defendants.
Defendants next contend that the trial court improperly admitted evidence of defendant Dellinger’s prior bad acts during the government’s case in chief. On direct examination, government witness Carpenter testified that he and Dellinger engaged in bid rigging on three other projects, two prior to and one after the Lancaster County sewer project. Carpenter did not remember his exact conversation with Del-linger. Defendants claim that the evidence was more prejudicial than probative.
As mentioned previously, prior bad acts of a defendant are admissible under rule 404(b) as long as they are offered for a purpose other than to prove bad character and are more probative than prejudicial. In this case, the trial court properly admitted, during the government’s case in chief, Carpenter’s testimony. Dellinger’s other bid rigging was probative of his knowledge of entering a bid rigging conspiracy. Moreover, the trial judge did not abuse his discretion by determining that the evidence was more probative than prejudicial as far as its effect on all four of the defendants. On two separate occasions during trial, the court gave the jury a comprehensive instruction on the limited use of rule 404(b) evidence, which is the suggested procedure of this circuit. See United States v. Teague, 737 F.2d 378, 381 (4th Cir.1984).
Defendants’ third claim of error focuses on the government’s alleged failure to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Defendants contend they were denied due process of law because the government did not disclose evidence provided by the engineer who originally estimated the cost of the Lancaster County sewer project. On cross-examination, the engineer testified that he deliberately under-estimated the project’s cost and expected the bids to exceed his estimate. Prior to his testimony, the defendants were unaware of the information. They argue that the testimony was exculpatory because it illustrates that their bids were not excessively high and, therefore, should have been disclosed under Brady.
Even if we assume that the engineer’s testimony is exculpatory, its belated disclosure does not constitute reversible error. No due process violation occurs as long as Brady material is disclosed to a defendant in time for its effective use at trial. United States v. Higgs, 713 F.2d 39 (3rd Cir.1983). In this case, the exculpatory information was put before the jury during cross-examination of the very first trial witness. The information was available for use in the defendant’s cross-examination of all further government witnesses as well as in the defendants’ case in chief. The disclosure of this exculpatory evidence, at trial, does not rise to the level of a constitutional violation.
Defendants’ fourth claim of reversible error is that they were denied due process of law when the trial court refused to clarify an alleged inference of attorney misconduct. While on cross-examination, a government witness asked Dellinger’s defense counsel whether he was the attorney paying him $500.00 per day. (The payment was a witness fee.) A few minutes later, the trial court recessed for the day, but in the presence of the jury asked Dellinger’s counsel to remain for a moment. The next morning the Court instructed the jury on the propriety of witness fees, but did not instruct the jury as to why the Court asked to speak to counsel.
Defendants argue that the trial court’s failure to give the requested instruction left an inference of attorney misconduct, which in turn violated their right to a fair trial. The alleged error does not constitute a due process violation. The trial court explained to the jury that witness fees were proper, adequately dispelling any notion that Dellinger’s defense counsel acted improperly.
Defendants next argue that their convictions should be reversed because the trial court improperly admitted testimony of Smith Grading’s ownership interest in two other contracting companies. During defendant Lee’s cross-examination, the government elicited testimony that Smith Grading owned part of the contracting firms RWF, Inc. and Bingham Construction. RWF, Inc. also bid on the Lancaster County sewer project, while Bingham Construction, along with Smith Grading, was a successful bidder on a different job known as the Hampton project. Defendants claim the admission of this evidence was both irrelevant and improper.
Although the relevance of the evidence was limited, the inclusion of Lee’s testimony was not an abuse of the trial court’s discretion. Smith Grading’s ownership interest in both RWF, Inc. and Bingham Construction was probative of defendants’ participation in the Lancaster County bid rigging scheme. RWF, Inc. only bid on part 2 of the project — the one section Smith Grading did not bid upon. Moreover, Smith Grading’s ownership interest in Bingham Construction helped explain particular telephone records, corroborating the defendants’ participation in the scheme.
Defendants’ sixth claim of reversible error focuses on the trial court’s conspiracy instruction. In its charge, the trial court instructed the jury that the defendants must have knowingly participated in a conspiracy in order to be found guilty of violating § 1 of the Sherman Act. The court went on to say that a conspiracy to rig bids is per se illegal and, therefore, the government need not prove defendants’ specific intent to unreasonably restrain trade. Defendants argue that the court’s conspiracy instruction should have included a specific intent instruction.
As indicated in both United States v. Portsmouth Paving Corp., 694 F.2d 312 (4th Cir.1982) and United States v. Society, of Independent Gasoline Marketers, 624 F.2d 461 (4th Cir.1979), cert. denied 449 U.S. 1078, 101 S.Ct. 859, 66 L.Ed.2d 801 (1981), this circuit recognizes per se antitrust violations. Therefore, the trial court correctly instructed the jury that the government must prove the defendants’ intentional participation in the conspiracy to rig bids. The government did not have to prove the defendants’ specific intent to unreasonably restrain trade. See also United States v. Brighton Building, 598 F.2d 1101 (7th Cir.1979), cert. denied 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 52 (1979).
Defendants’ seventh claim is that the trial court erred in its reasonable doubt instruction by not including language that a reasonable doubt is the type of doubt that would make a reasonable person hesitate to act. The trial court’s instruction included the sentence, “Proof beyond a reasonable doubt is established if the evidence is such as you would be willing to rely and act upon in the more important matters of your own life.”
In United States v. Moss, 756 F.2d 329 (1985), this Court recently considered the efforts, by trial judges, to define reasonable doubt as well as the variations of language used in the process. The rule from Moss is that the term reasonable doubt is self-explanatory. Attempts to further define it are ill advised. Yet, when a district judge does attempt to explain reasonable doubt, his instruction does not constitute reversible error unless it adds such confusion as to be prejudicial to a defendant. In this case, the absence of the “hesitating” language in the trial court’s reasonable doubt instruction is not reversible error. Read in its entirety, the instruction was neither incomprehensible nor sufficiently misleading. It therefore did not deny the defendants’ right to due process of law.
Defendants’ eighth claim of reversible error focuses upon a comment made by a U.S. magistrate who was presiding over the case during jury deliberations. The jury asked to rehear portions of the testimony of government witnesses Carpenter and Zeigler. The jury reheard Carpenter’s testimony, which was quite lengthy, and then recessed for dinner. When the jury returned, the presiding magistrate explained that counsel had endeavored to streamline Zeigler’s testimony in order to save time, but had not reached agreement. The magistrate stated, “I am advised that they have been unable to come to any firm agreement on that because apparently the next witness’s testimony goes more directly into the circumstances that you want to hear than the previous witness’s testimony.” The jury heard Zeigler’s testimony and then recessed for the evening.
Defendants contend that the magistrate’s statement implied 1) Zeigler’s testimony was more probative than Carpenter’s testimony and 2) even defense counsel thought this was true. Based on these concerns, the magistrate spoke to the jury the next morning, before they resumed deliberations. The magistrate explained that he did not intend to imply that one witness was more important than another. All he meant to convey was that Zeigler’s testimony had less introductory material.
The magistrate’s comment is not grounds for the reversal of defendants’ convictions. His explanatory instructions rendered his earlier statement harmless. In addition, the jury knew that the magistrate had not been present at trial, and therefore, he did not know the content of the witnesses’ testimony. The magistrate did not violate the defendants’ right to a fair trial.
In their ninth claim of error, defendants argue that there was insufficient evidence presented at trial to support their conspiracy convictions. This claim is also meritless. A jury’s verdict must be sustained if any rational trier of fact could find guilt beyond a reasonable doubt when the evidence is viewed in the light most favorable to the government. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Portsmouth Paving Corp., supra at 317. When viewed in this light, the prosecutor’s case included sufficient evidence to support the jury’s conviction on Count 1 of the indictment. The jury believed Carpenter and Zeigler, the defendants’ co-conspirators. Moreover, the bid submissions and telephone records support the government’s case.
Next defendants argue that they were denied due process of law because the jury verdict was against the weight of the evidence. This claim also deserves short consideration. The applicable question before us is whether the district court abused its discretion by not granting the defendants’ motion for a new trial. United States v. Lincoln, 630 F.2d 1313 (8th Cir.1980). There was no such abuse. The evidence in this case does not sufficiently preponderate against the verdict to render that verdict a miscarriage of justice.
Finally, defendants argue for a reversal of their convictions on grounds that the cumulative effect of all the above mentioned errors denied them their right to a fair trial. Again, the defendants’ claim lacks merit. Whether considered singularly or together, all the defendants’ arguments fail to justify reversal. This Court AFFIRMS the convictions below.
. Federal Rule of Evidence 608(b) states,
“Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
“The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.”
. Federal Rule of Evidence 404(b) states,
“Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
. The purpose of the no extrinsic evidence rule found in 608(b) is to prevent undue delays of trial, surprise and prejudice. Rule 608(b) seeks to avoid proof of the underlying behavior, which may confuse or sidetrack the jury. Moreover, the rule is designed to protect a witness, by prohibiting extrinsic evidence offered solely for the purpose of attacking that witness’s credibility. See Weinstein & Berger, Weinstein's Evidence, § 608(5).
. The purpose of the Federal Rules of Evidence is found iri rule 102. It states, “These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”
. Defendants Lee and Smith Grading argue that the admission of Dellinger’s past bad acts should have been excluded because it prejudiced them by association. This argument is also without merit. The trial judge properly admitted evidence of Dellinger’s prior misconduct and twice gave a cautionary instruction to the jury that the evidence was not to be considered against the other defendants.
. In addition, the fact that disclosure came from a source other than the prosecutor is of no consequence. When determining the constitutional validity of a belated Brady disclosure, the relevant inquiry is solely whether the defendant was able to effectively use the exculpatory information. See United States v. McCrary, 699 F.2d 1308 (11th Cir.1983).
. This is one sentence within a lengthy reasonable doubt instruction. The trial judge stated, "... a reasonable doubt is not a fanciful doubt or a slight doubt. Neither does proof beyond a reasonable doubt require that the prosecution prove a defendant guilty beyond all doubt. A reasonable doubt is a fair doubt, based upon reason and common sense and arising from the state of the evidence.
"We recognize that it is rarely possible to prove anything to an absolute certainty, and surely the prosecution is not required to do that. Proof beyond a reasonable doubt is established if the evidence is such as you would be willing to rely and act upon in the more important matters of your life. A defendant is not to be convicted on mere suspicion or conjecture or speculation.
"____ A reasonable doubt exists in any case when after a careful and impartial consideration of all the evidence, you jurors do not feel convinced to a reasonable moral certainty that a defendant is guilty of the charges against him.”
. United States Magistrate Charles W. Gambrell presided over the case during the jury deliberations at the request of the presiding trial judge, Charles E. Simons, Jr. According to the record, Judge Simons left Rock Hill, South Carolina because of a prior commitment.
Question: Did the court conclude that a confession or an incriminating statement was improperly admitted? Consider only incriminating statements made by the defendant.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
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".
Samuel KATKIN and Doris Katkin, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 77-1483.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 2, 1977.
Decided Jan. 26, 1978.
John S. Nolan, Miller & Chevalier, Washington, D. C., for appellants.
M. Carr Ferguson, Asst. Atty. Gen., Tax Div., U. S. Dept, of Justice, Washington, D. C., Gilbert E. Andrews, Grant W. Wiprud, F. Arnold Heller, Stuart E. Seigel, Chief Counsel, Internal Revenue Service, Washington, D. C., for appellee.
Before CELEBREZZE, LIVELY and MERRITT, Circuit Judges.
LIVELY, Circuit Judge.
The question in this case is whether the receipt of stock in 1971 by shareholders of a corporation which was a party to a 1968 merger that qualified as a tax-free reorganization constituted a “deferred payment” within the meaning of section 483 of the Internal Revenue Code, 26 U.S.C. § 483. Section 483 provides in general for imputation of interest according to a statutory formula to any payment under a contract for the sale or exchange of property which constitutes part or all of the sales price and which is deferred for more than one year after the sale or exchange, where no interest or inadequate interest is provided for.
The taxpayers exchanged their stock in two corporations, Detroit Bolt and Nut Co. (Detroit) and Quinn Manufacturing Co. (Quinn), for the stock of Whittaker Corporation (Whittaker) pursuant to an acquisition agreement and plan of reorganization dated August 19,1968. Because the parties were unable to agree on the exact value of the Detroit and Whittaker stock, the taxpayers also received, as part of the exchange, a nonassignable right to receive additional shares of Whittaker stock. The agreement provided that additional Whit-taker stock (up to a certain maximum) would be issued if the value of the Whittaker shares received at closing had not increased at least 20 percent by the third anniversary of the closing date. It was possible that no additional stock would be issued, since entitlement to it was contingent on the market performance of Whit-taker stock. Whittaker set up a reserved stock account, and the maximum number of shares that could be issued was set aside for possible future delivery. By the third anniversary of the closing date, the value of the Whittaker stock had decreased substantially. Accordingly, in 1971, all of the Whit-taker stock in the reserved stock account was issued to the taxpayers. The agreement did not provide for the payment of interest by Whittaker on that portion of the agreed exchange value which was represented by the shares of stock issued in 1971.
The Commissioner assessed an income tax deficiency for 1971 on the theory that the issuance of shares of Whittaker stock to the taxpayers in 1971 constituted a deferred payment in connection with the 1968 exchange of stock, applying Example (7), Treas. Reg. § 1.483-1(b)(6). Upon petition by the taxpayers for a determination of no deficiency the Tax Court held “that the contingent payments of Whittaker stock received by petitioners in 1971 are subject to the imputed interest provision of section 483.”
On appeal the taxpayers contend that the Tax Court did not seriously consider their argument that the transaction with Whit-taker did not involve a deferred payment. They argue that they received a definite equitable interest in Whittaker in 1968 in exchange for their Detroit and Quinn stock and that the issuance of Whittaker stock to them in 1971 was merely a paper transaction which translated the previously unknown value into a certain number of shares. Hence, they claim, there was no payment in 1971. The government, on the other hand, maintains that the right to receive additional shares was in fact an evidence of indebtedness payable in stock three years after the merger was consummated, and that the issuance of Whittaker stock at that time was a payment.
The taxpayers have presented three closely related arguments which are based on the assumption that Congress has exempted the participants in corporate reorganizations from any and all tax consequences if the requirements for non-recognition of gain and loss are met. The government responds that the sweeping language of section 483 indicates that it applies to tax-free reorganizations as well as to other transactions where there is a deferred payment. It refers to the opening language of section 483, “For purposes of this title, in the case of any contract for the sale or exchange of property there shall be treated as interest . . . ” and the provision in subsection (c)(1), “Except as provided in Subsection (f), this section shall apply to any payment on account of the sale or exchange of property which constitutes part or all of the sales price . . . .” Subsection (f) contains five exceptions to the application of section 483 and none of these exceptions relates to tax-free reorganizations. The government points out that the Eighth Circuit found the language of section 483 to be “comprehensive and unambiguous” in applying it to installment sales in Robinson v. Commissioner of Internal Revenue, 439 F.2d 767, 768 (1971).
The basic contention of the taxpayers is that the tax treatment of qualified reorganizations should not be affected by the fact that part of the equity interest received by shareholders of an acquired corporation is represented for a period of time by something other than certificates for a definite amount of stock. They point to the “continuing interest” theory which is often cited as justification for the special tax treatment accorded corporate reorganizations. See, e. g., Mertens, Law of Federal Income Taxation, Vol. 3, § 20.55, where the author states:
The justification for the exemption from taxation of gains realized in corporate reorganizations is that the parties making the exchanges have simply changed the form of their corporate holdings and that what was formerly a corporate business carried on by a particular corporation, or corporations, in a particular corporate form, or forms, is to be now carried on and continued by other and perhaps new corporations having new corporate form.
Since in law their interest in Whittaker is a continuation of their interests in Detroit and Quinn, it is inconsistent with the overall tax treatment of qualified reorganizations to base tax consequences on the time at which indicia of ownership are delivered, they contend. In support of this argument the taxpayers point out that the holding period of stock received in exchange dates from the acquisition of the stock given in exchange rather than from the date of the exchange. 26 U.S.C. § 1223.
The fact that a shareholder who receives stock in an acquiring corporation is considered to have a “continuing interest” does not preclude the treatment of any issuance of stock to him subsequent to the initial exchange as a deferred payment. The continuing interest theory is irrelevant to the problem of unstated interest dealt with in section 483. Though the value which the taxpayers were entitled to receive under the acquisition agreement and plan of reorganization was fixed at the time of the initial transfer, the stock which was actually transferred at that time represented only a portion of that value. The taxpayers had the immediate right to vote the stock which was transferred to them at the time of the consummation of the merger and to receive dividends thereon. No such rights attached to the right to receive additional shares. The stock which was set aside in reserve by the acquiring corporation for three years was not property of the taxpayers and would not become their property unless the conditions of the agreement were met. Until it was determined that these conditions had been met and the stock was issued to the taxpayers they had not received the full value for which they bargained in the acquisition agreement. Thus we conclude that the final payment in the agreement for exchange of stock was not made until the stock was issued to the taxpayers in 1971. Webster’s Third New International Dictionary, Unabridged (1971 edition), defines “payment” as the discharge of a debt or an obligation. Black’s Law Dictionary (Rev.Fourth Ed. 1968), defines it as the fulfillment of a promise or the performance of an agreement. The issuance and delivery of the stock to the taxpayers in 1971 was an occurrence within the plain meaning of the word “payment” as used in section 483.
The taxpayers also contend that their right to receive additional shares must be treated as stock in Whittaker, since nonrecognition of gain or loss would have been forfeited if they had received “boot” or other property. 26 U.S.C. § 356. From this position they argue that since they received nothing but stock, the scheme of non-recognition is somehow violated by treating part of the value of the 1971 shares as unstated interest. This argument is based primarily upon the decision in Carlberg v. United States, 281 F.2d 507 (8th Cir. 1960). The only question in Carlberg, which was decided before the enactment of section 483, was whether certificates of contingent interest are “stock” within the reorganization provisions of the Internal Revenue Code. The court held that such certificates are stock and that the lapse of time between the initial transfer and ultimate distribution of reserve shares does not of itself affect the qualification of the certificates as stock under the reorganization provisions.
The determination that certificates of contingent interest which are issued in connection with a corporate reorganization are “stock” and that delay in issuing stock certificates is not fatal to non-recognition of gain does not dispose of the question of whether such delay may properly be the basis for application of the imputed interest requirement of section 483. Carlberg did not address this question and does not provide an answer. The fact that certificates of contingent interest have been held to be stock of the acquiring corporation rather than “other property,” 26 U.S.C. § 356(b)(2), does not require a holding that the value of the shares eventually to be exchanged for such certificates includes no unstated interest. Section 356 is concerned with the requirements for non-recognition of gain or loss and does not deal with interest, the subject matter of section 483.
The taxpayers next argue that even if the transfer of stock in 1971 did constitute a deferred payment within section 483 Congress did not intend for that section to apply to corporate reorganizations which qualify for non-recognition of gain or loss. They rely on the familiar maxim of statutory construction that where there is an apparent conflict between statutes, the specific will prevail over the general, regardless of which is first enacted. Bulova Watch Co. v. United States, 365 U.S. 753, 81 S.Ct. 864, 6 L.Ed.2d 72 (1961). They maintain that the application of section 483 to that portion of the stock received in 1971 directly conflicts with the provisions of the Internal Revenue Code which recognize their transaction as a tax-free reorganization.
The taxpayers cite Fox v. United States, 510 F.2d 1330 (3d Cir. 1975), for the proposition that the general provisions of section 483 should not “override” other specific provisions of the Code which apply to established concepts of taxation law. Fox is an unusual case in which a divorced husband sought to obtain deductions for unstated interest which he contended was included in periodic alimony payments to his former wife. The court pointed out that the property settlement between the taxpayer and his divorced wife had been carefully drawn with attention to the tax consequences. The alimony was payable in 9V2 years, thus falling within a provision which made the payments nontaxable to the divorced wife. Alimony payments are deductible by the husband only if they are taxable to the wife by virtue of section 215 of the Internal Revenue Code. Since the payments were not taxable to the wife, under section 215 there could be no deduction by the husband, and a deduction could not be contrived by imputing interest. Of course, this case may be distinguished on the ground that the settlement between the husband and wife was not a contract for the sale or exchange of property — the first requirement for application of section 483. Even if the settlement between husband and wife were considered a contract for the sale or exchange of property, however, we do not believe that the rationale of Fox v. United States, is controlling in the present case. In Fox there was a direct and inherent conflict between section 215, which dealt specifically with the deductibility of alimony payments, and any other provision of the Internal Revenue Code which might be construed to permit a deduction for payments by a husband to his divorced wife of amounts which were not taxable to her. No such direct conflict exists between the reorganization provisions and section 483.
The reorganization provisions permit non-recognition of gain from the exchange transaction itself. Imputed interest is ordinary income, not gain from the sale or exchange of property. When Congress provided for non-recognition of gain or loss from the sale or exchange of stock or other securities in certain corporate reorganizations it did not encase such transactions in a cocoon of non-taxability which shields them from every tax consequence to which they would otherwise be subject. Though the primary concern of Congress in enacting section 483 was to prevent the treatment of interest income as capital gain, the operative language of the statute is so all-inclusive, and its exceptions so clearly stated, that we can perceive no basis for holding that it does not apply to a qualified reorganization where part of the stock representing the sales price is transferred more than one year after the initial exchange.
We conclude that the majority of the Court of Claims reached the correct result in Jeffers v. United States, 556 F.2d 986 (1977), a case which is essentially indistinguishable from the present one. After preparation of this opinion began the Second Circuit released its opinion in a companion case, Solomon v. Commissioner of Internal Revenue, 570 F.2d 28 (No. 77-4120, December 14, 1977), in which it affirmed the Tax Court’s deficiency findings. The taxpayers in Solomon owned all of the stock of Detroit and Quinn not owned by the Katkins. Thus, the facts (except for the numbers of shares involved) and the legal issues are identical in the two cases. Noting Judge Mansfield’s comprehensive treatment of the pertinent legislative history in Solomon, with which we agree, we have omitted discussion of that history from this opinion.
The judgment of the Tax Court is affirmed.
APPENDIX
§ 483. Interest on certain deferred payments
(a) Amount constituting interest. — For purposes of this title, in the case of any contract for the sale or exchange of property there shall be treated as interest that part of a payment to which this section applies which bears the same ratio to the amount of such payment as the total unstated interest under such contract bears to the total of the payments to which this section applies which are due under such contract.
(b) Total unstated interest. — For purposes of this section, the term “total unstated interest” means, with respect to a contract for the sale or exchange of property, an amount equal to the excess of—
(1) the sum of the payments to which this section applies which are due under the contract, over
(2) the sum of the present values of such payments and the present values of any interest payments due under the contract.
For purposes of paragraph (2), the present value of a payment shall be determined, as of the date of the sale or exchange, by discounting such payment at the rate, and in the manner, provided in regulations prescribed by the Secretary or his delegate. Such regulations shall provide for discounting on the basis of 6-month brackets and shall provide that the present value of any interest payment due not more than 6 months after the date of the sale or exchange is an amount equal to 100 percent of such payment.
(c) Payments to which section applies.—
(1) In general. — Except as provided in subsection (f), this section shall apply to any payment on account of the sale or exchange of property which constitutes part or all of the sales price and which is due more than 6 months after the date of such sale or exchange under a contract—
(A) under which some or all of the payments are due more than one year after the date of such sale or exchange, and
(B) under which, using a rate provided by regulations prescribed by the Secretary or his delegate for purposes of this subparagraph, there is total unstated interest.
Any rate prescribed for determining whether there is total unstated interest for purposes of subparagraph (B) shall be at least one percentage point lower than the rate prescribed for purposes of subsection (b)(2).
(2) Treatment of evidence of indebtedness. — For purposes of this section, an evidence of indebtedness of the purchaser given in consideration for the sale or exchange of property shall not be considered a payment, and any payment due under such evidence of indebtedness shall be treated as due under the contract for the sale or exchange.
(d) Payments that are indefinite as to time, liability, or amount. — In the case of a contract for the sale or exchange of property under which the liability for, or the amount or due date of, any portion of a payment cannot be determined at the time of the sale or exchange, this section shall be separately applied to such portion as if it (and any amount of interest attributable to such portion) were the only payments due under the contract; and such determinations of liability, amount, and due date shall be made at the time payment of such portion is made.
(e) Change in terms of contract. — If the liability for, or the amount or due date of, any payment (including interest) under a contract for the sale or exchange of property is changed, the “total unstated interest” under the contract shall be recomputed and allocated (with adjustment for prior interest (including unstated interest) payments) under regulations prescribed by the Secretary or his delegate.
(f) Exceptions and limitations.—
(1) Sales price of $3,000 or less. — This section shall not apply to any payment on account of the sale or exchange of property if it can be determined at the time of such sale or exchange that the sales price cannot exceed $3,000.
(2) Carrying charges. — In the case of the purchaser, the tax treatment of amounts paid on account of the sale or exchange of property shall be made without regard to this section if any such amounts are treated under section 163(b) as if they included interest.
(3) Treatment of seller. — In the case of the seller, the tax treatment of any amounts received on account of the sale or exchange of property shall be made without regard to this section if no part of any gain on such sale or exchange would be considered as gain from the sale or exchange of a capital asset or property described in section 1231.
(4) Sales or exchanges of patents. —This section shall not apply to any payments made pursuant to a transfer described in section 1235(a) (relating to sale or exchange of patents).
(5) Annuities. — This section shall not apply to any amount the liability for which depends in whole or in part on the life expectancy of one or more individuals and which constitutes an amount received as an annuity to which section 72 applies.
. Section 483 in its entirety is printed as an appendix to this opinion.
. * * * * * *
Treasury Regulations (1954 Code):
Treas. Reg. § 1.483-1. Computation of interest on certain deferred payments.
* * * * * *
(b) Payments to which section 483 applies -* * *
(6) Examples. The provisions of this paragraph may be illustrated by the following examples:
* * * * * *
Example (7). M Corporation and N Corporation each owns one-half of the stock of O Corporation. On December 31, 1963, pursuant to a reorganization qualifying under section 368(a)(1)(B), M contracts to acquire the one-half interest held by N for an initial distribution on such date of 30,000 shares of M voting stock, and a nonassignable right to receive up to 10,000 additional shares of M’s voting stock during the next 3 years, provided the net profits of O Corporation exceed certain amounts specified in the contract. No interest is provided for in the contract. No additional shares are received in 1964 or in 1965, but in 1966 the annual earnings of O Corporation exceed the specified amount and on December 31, 1966, an additional 3,000 M voting shares are transferred to N. Section 483 applies to the transfer of the 3,000 M voting shares to N on December 31, 1966. See example (2) of paragraph (e)(3) of this section for an illustration of the computation of total unstated interest in this case.
* * * * * *
. This factor distinguishes the present case from one described in Rev.Rule 70-120 where a part of the stock of the acquiring corporation was held in escrow pending determination of the earnings of an acquired corporation. Though held in escrow for more than one year, the shares were registered in the names of the acquiring shareholders who were entitled to vote and receive all dividends paid on the es-crowed stock. They received an immediate economic benefit from the escrowed stock at the time of the initial transfer.
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_counsel2
|
E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
J. P. STEVENS & CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, Petitioner/Intervenor. AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION, AFL-CIO, CLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. J. P. Stevens & Co., Inc., Petitioner/Intervenor.
Nos. 79-1624, 79-1754.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 6, 1980.
Decided Dec. 31, 1980.
J. Hamilton Stewart, III, Robert Oliver King, Greenville, S. C. (Ogletree, Deakins, Smoak, Stewart & Edwards, Greenville, S. C., on brief), for petitioners.
Stephen Burrow, Asst. Gen. Counsel, Washington, D. C. (Arthur M. Goldberg, Gen. Counsel, Washington, D. C., on brief), for petitioners/intervenors.
Judith Dowd, N. L. R. B., Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John D. Burgoyne, Asst. Gen. Counsel, Barbara Kraft, Washington, D. C., on brief), for respondent.
Before WINTER, Circuit Judge, FIELD, Senior Circuit Judge, and PHILLIPS, Circuit Judge.
WINTER, Circuit Judge:
J. P. Stevens & Company (the company) and the Amalgamated Clothing and Textile Workers Union, AFL-CIO (the union) filed separate petitions for review of an order of the National Labor Relations Board, and the Board cross-petitioned for enforcement. The Board held that the company violated §§ 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3) (1976), at its Rocky Mount, Virginia plant by issuing disciplinary warnings to two employees and by discharging one of them. The Board found violations of § 8(a)(1) of the Act in a speech delivered to assembled employees by a company executive, in two printed notices posted in the plant, and in several statements made by company supervisors to employees. As a remedy, the Board ordered reinstatement and back pay for the discharged employee and required the company to expunge the challenged warnings from employee records. The Board issued a company-wide cease and desist order, required posting and reading of a notice in all company plants, and ordered the company to afford the union access to plant bulletin boards and an opportunity to attend and respond to company speeches on unionization.
The company seeks to set aside the Board’s order in whole or in part on the grounds that none of the Board’s findings is supported by substantial evidence and that the Board abused its discretion in ordering corporate-wide remedies. The union supports the Board’s findings and further claims that the discharge of employee Robert Montgomery violated § 8(a)(4) as well as § 8(a)(3). We agree with the union that the discharge of Montgomery violated § 8(a)(4). We hold that substantial evidence does not support the Board’s finding that Stevens violated §§ 8(a)(1) and (3) of the Act in issuing two verbal warnings to Montgomery. We set aside the Board’s findings and order in this respect. In all other instances, we find that the Board’s decision is supported by substantial evidence, and, as modified, we enforce the Board’s order.
I.
This case arises from a campaign to unionize the company’s textile manufacturing plants in Rocky Mount, Virginia. Richard Cruze was plant manager; Richard Hodges was weaving room superintendent in charge of 832 looms; and T. J. Griffin was group manager of the South Boston, Virginia region. The plant’s employees began organizing in support of the union in May, 1976. In mid-August 1976 the union sent a representative to the site and he began formally to organize pro-union employees. Robert Montgomery and Donald Thurmon were members of the union’s in-plant organizing committee and among the most outspoken advocates of the union. They signed authorization cards early in the campaign, solicited cards from other employees and distributed union literature.
Other facts will be stated later with respect to the specific violation of the Act found by the Board to which they relate. But because the company asserts there is a common factor which pervades all of the Board’s findings and undermines its decision, it is appropriate that we address it at the outset of this opinion. The factor is the company’s long and substantial history of repeated significant violations of the Act. The company claims it is not only contrary to law but also “reprehensible” for the Board to consider this history as evidence of improper motive in personnel actions or as a factor contributing to the coercive nature of company speeches and notices to employees. We disagree. Certainly a heritage of intransigence could seldom provide the sole basis for a finding of unfair labor practices. See Florida Steel Corp. v. NLRB, 587 F.2d 735, 744 (5th Cir. 1979). However, in carrying out its administrative and enforcement function under the Act, the Board is not required to blind itself to past infractions as is a judge or jury in determining the guilt or innocence of a criminal defendant. That history is relevant to the two types of alleged violations in this case. In considering the § 8(a)(3) charges, the Board’s task was to unearth the motive behind company personnel actions in disciplining and discharging employees. Steven’s unrivaled willingness to violate the law in the past is just as material to the issue of motive as are the disciplinary records of employees relied upon so heavily by the company to justify the disciplinary action it took. In considering § 8(a)(1) charges, the Board was required to assess the impact of a supervisor’s speech on the mind of an employee under the circumstances of a particular case. It is only rational for the Board to conclude that words which represent acceptable argument and opinion in many contexts may take on a more coercive tone in the mind of an employee who considers them against a backdrop of intransigence and retaliation.
There is no unfairness in the Board’s partial reliance on the company’s labor relations history, for it is within the company’s power to put an end to that history. Of course the company need not abandon its opposition to unionization and embrace the union. It need only exhibit to the Board, to the courts, and — most importantly — to its own employees that it is willing to assert its opposition within the limits imposed by the Act. Affirmative steps exhibiting such a willingness or a sustained period of time without serious violations will lead this court to discount Board findings based substantially on company history. Nevertheless, the limits of what is permitted and what is proscribed under the Act are flexible and dependent upon the circumstances of particular cases. As a consequence, the company cannot avoid the shadow of its past by conducting its operations along the outermost fringes of what other employers have been permitted to do in other contexts. If it chooses to take such a course, then it should not be heard to complain when it reaps the harvest of its earlier lawlessness.
II.
§ 8(a)(3) Violations.
The employer’s motive is the focal point in determining whether an employer has discriminated “in regard to hire or tenure of employment or any term or condition of employment” in violation of § 8(a)(3), and the Board’s finding as to motive must be upheld if supported by substantial evidence. Perel v. NLRB, 373 F.2d 736, 737 (4th Cir. 1967). The mere presence of legitimate business reasons for disciplining or discharging an employee does not automatically preclude a finding of discrimination. “[I]t is enough that a discriminatory motive was a factor in the employer’s decision.” Neptune Water Meter Co. v. NLRB, 551 F.2d 568, 569 (4th Cir. 1977). The Board’s finding of a § 8(a)(3) violation should be upheld where there is a basis in the record for concluding that discipline would not have occurred, or would have taken a milder form, except for an employee’s union activity. Id. at 570.
A. Donald Thurmon.
The Board found that the company violated § 8(a)(3) in issuing a written warning to employee Donald Thurmon for failure to start up a new warp. This finding is supported by substantial evidence. Supervisor Walter Altice admitted that Thurmon was the best loom “fixer” under his supervision. On September 15,1976, barely a week after announcing his support for the union in the presence of the plant manager, Thurmon received the first written warning of his fifteen-year career. The administrative law judge credited Thurmon’s testimony that the warning came in the midst of an effort by Altice to overburden Thurmon with unnecessary work. Moreover, the evidence shows that Thurmon did attempt to start the warp as requested, but was unable to do so because of missing parts.
B. Robert Montgomery.
The Board found § 8(a)(3) violations in two verbal warnings issued to employee Robert Montgomery on September 15 and October 20, 1976. We cannot conclude that substantial evidence supports the Board’s conclusion. Because the General Counsel did not even address these warnings in his complaint, testimony regarding them is almost nonexistent. At one point, Montgomery testified that he did not recall the October 20 warning. The warnings dealt with intentional acts, the dropping of wires to prevent shutdown of a loom, which Montgomery admitted doing on several occasions.
Montgomery received written warnings on September 1 and October 1, 1976, for pressuring other employees to sign union cards. The Board found that the warnings violated § 8(a)(3) not because Montgomery’s conduct was protected, but because his punishment was disproportionately harsh when compared to the company’s treatment of similar conduct by James Wimmer, a known anti-union employee. The Board’s conclusion properly recognizes that “[wjhile the company had the right to enforce reasonable rules to maintain discipline during working hours, it may not distort those rules to club a union which is attempting to organize the employees.” NLRB v. Overnite Transportation Co., 308 F.2d 284, 290 (4th Cir. 1962) (citations omitted). Discrimination is apparent when Montgomery’s discipline is compared to Wimmer’s. On two occasions, Montgomery made harassing — but hardly genuinely threatening — remarks to fellow employees. On both occasions he received immediate written warnings with no opportunity to speak in his own defense. Wimmer threatened Montgomery twice, once in the presence of a company supervisor, and physically assaulted him. The company initially issued only verbal warnings to Wimmer. Only when Montgomery filed assault charges with the local sheriff after the second incident did the company respond with a written warning to Wimmer. The company argues that the difference in treatment can be explained by supervisor Altice’s belief that Wimmer’s assault was provoked by Montgomery. However, Altice never offered such an explanation when he testified before the administrative law judge. Thus, the record provides ample support for the Board’s finding that the warnings were discriminatory.
The Board found a final § 8(a)(3) violation in the discharge of Montgomery by plant manager Cruze on April 1, 1977. The company argues that it never discharged Montgomery, but that he voluntarily quit and that company policy prohibited his rehiring after his job had been posted as vacant. Because of inconsistencies in Cruze’s testimony, the administrative law judge credited Montgomery’s version of the events of April 1. Montgomery testified that he asked Cruze for a temporary layoff because he was nervous and afraid following Wimmer’s assault. Cruze suggested that he visit the doctor. When Montgomery returned after a brief absence, Cruze presented him with hastily prepared termination papers and informed him that he had quit. Despite Montgomery’s protests to the contrary Cruze stood firm, even when Montgomery returned to work with tools in hand on the next work day. Cruze’s haste in ridding the company of a known union activist less than a week after he had been involved in an altercation with an anti-union employee provides ample basis for the Board’s inference of discrimination, especially in light of the company’s previous discriminatory treatment of Montgomery. The company’s only explanation for the termination, that Montgomery voluntarily quit, is based on discredited testimony.
III.
§ 8(a)(4) Violation.
Although the Board found that Montgomery’s discharge violated § 8(a)(3) of the Act, it declined to find a violation of § 8(a)(4). That section provides:
It shall be an unfair labor practice for an employer... to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this [Act].
29 U.S.C. § 158(a)(4) (1976). We hold that, once the Board discredited the company’s explanation that Montgomery voluntarily quit his job, the evidence required a finding that Montgomery’s discharge violated § 8(a)(4) as well as § 8(a)(3).
Montgomery participated in the investigation of charges filed on September 13, and 27, 1976, which alleged unfair labor practices in issuing disciplinary warnings to Montgomery. In his testimony, supervisor Altice volunteered that he was aware of Montgomery’s participation in Board investigations at the time he issued the October 1 written warning. In fact, the record suggests that Montgomery made a regular practice of reporting alleged unfair labor practices to his supervisors and threatening to file charges. Only a week before his discharge, Montgomery told Altice that he intended to file charges if the company continued to countenance his harassment at the hands of Wimmer. On April 1, 1977, the day plant manager Cruze terminated Montgomery’s employment, the company received the General Counsel’s complaint alleging, inter alia, discrimination against Montgomery.
To explain Montgomery's termination, the company claimed that he was not discharged but that he left work voluntarily. The administrative law judge discredited that explanation and found that Montgomery was discharged as a result of union activity. Montgomery’s complaints to the Board, threats of further complaints, and participation in Board investigations are inextricably bound to his other union activities. We find no rational basis for believing that the company reacted to one form of activity and not to the other. In keeping with the long judicial tradition of liberally applying § 8(a)(4) to “prevent the Board’s channels of information from being dried up by employer intimidation of prospective complainants and witnesses,” NLRB v. Scrivener, 405 U.S. 117, 122, 92 S.Ct. 798, 801, 31 L.Ed.2d 79 (1972), we direct the Board to modify its order to find that Montgomery’s discharge violated § 8(a)(4) of the Act.
IV.
§ 8(a)(1) Violations.
A. Statements by Supervisors.
Despite the administrative law judge’s finding to the contrary, the Board found a violation of § 8(a)(1) in plant manager Cruze’s comments to Montgomery in February 1977. Spotting union cards in Montgomery’s pocket, Cruze commented, “Don’t you lose them union cards in your pocket.” Later that same day Cruze told Montgomery, “I. see you haven’t lost your union cards.”
The Board’s finding of a violation on these facts is supported by substantial evidence. It is an unfair labor practice for an employer to create in the minds of employees an impression that he is closely observing union organizational activity. Filler Products, Inc. v. NLRB, 376 F.2d 369, 374 (4th Cir. 1967). However innocent the comments may appear to a disinterested observer, Cruze’s statements certainly were capable of giving an impression of surveillance to an employee who had previously suffered discrimination as a result of union activity. Directly on point in support of the Board’s position is NLRB v. Intertherm, Inc., 596 F.2d 267 (8th Cir. 1979). There the Board, ruling contrary to the administrative law judge, found a § 8(a)(1) violation where a company official simply pulled a union card partially out of an employee’s pocket to look at it and made no comment at all. Id. at 273. The Eighth Circuit enforced the Board’s ruling.
The Board also found a § 8(a)(1) violation in training supervisor McGinnis’s statement to employee David Turner in February 1977, asking Turner to let the company know if anyone ever “bothered him about the Union.” McGinnis admitted making the statement. An employer’s request that an employee report union activity is a clear violation of § 8(a)(1). NLRB v. McCormick Concrete Co., 371 F.2d 149, 151-52 (4th Cir. 1967). Courts have upheld Board findings of violations stemming from almost identical language. Lutheran Hospital of Milwaukee, Inc. v. NLRB, 564 F.2d 208, 211 (7th Cir. 1977) (“Please let me know if you are bothered.”), vacated on other grounds, 438 U.S. 902, 98 S.Ct. 3118, 57 L.Ed.2d 1145 (1978); NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1159-61 (5th Cir. 1977) (“If you should be caused any trouble, or be put under any pressure to support a union, you should report the matter to your Supervisor.”). While an employer has the right to shield his employees against unlawful union coercion, he may not issue broad requests to report union activity while making no attempt to distinguish the lawful from the unlawful. See, e. g., Lutheran Hospital of Milwaukee, Inc. v. NLRB, supra. This is particularly true where, as here, the only evidence of any union coercion involved past isolated statements. Montgomery’s two statements five months earlier can hardly provide continuing license for the company to commit otherwise unfair labor practices.
The Board found another § 8(a)(1) violation in a separate incident involving Turner. In April 1977, superintendent Hodges asked Turner if he had read the company notice regarding union cards. He told Turner that the company “did not need” the union and “did not need” any more union cards. The company argues that the Board improperly found a violation in the simple statement that the employer did not want a union. We need not reach this contention, however, because the statements violate § 8(a)(1) for other reasons. In making the statements, Hodges called Turner’s attention to the company’s April 5 notice. Since we uphold the Board’s finding that the notice itself violated § 8(a)(1), then it is equally unlawful for a company supervisor to urge an employee to read the notice.
B. Griffin’s Speech.
On August 5 and 6, 1976, group manager Griffin read a prepared speech to the entire work force at the Rocky Mount plant. The Board found that, given the “backdrop of continuous unfair labor practices” by the company at other plants for many years, Griffin’s speech violated § 8(a)(1) because “[i]ts overriding message to the employees is that selecting a union would be futile and to stay away from the Union or be injured by the [company’s] retaliatory measures.” Even though there is no factual dispute concerning the actual language of the speech, it is not the role of this Court to determine whether, in some abstract sense, that language violates the Act:
[A] reviewing court must recognize the Board’s competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship.
NLRB v. Gissel Packing Co., 395 U.S. 575, 620, 89 S.Ct. 1918, 1943, 23 L.Ed.2d 547 (1969). We must assess the Board’s conclusion in light of all the circumstances surrounding the speech.
The prohibition set forth in § 8(a)(1) is limited by § 8(c) which provides:
The expressing of any views, argument, or opinion... shall not constitute or be evidence of an unfair labor practice... if such expression contains no threat of reprisal or force or promise of benefit.
29 U.S.C. § 158(e). The Supreme Court has said that § 8(c) “merely implements the First Amendment” and that “an employer’s rights cannot outweigh the equal rights of the employees to associate freely.” Gissel, supra, at 617, 89 S.Ct. at 1941. The Gissel opinion adds:
[A]ny balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.
Id.
To assist courts of appeals in striking the required balance, Gissel provides particularized guidelines for distinguishing protected from unprotected employer speech:
[A]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union.... He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control.... If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment.
Id. at 618, 89 S.Ct. at 1942.
In several passages Griffin’s speech exceeds the limits set forth in Gissel. His predictions of “friction and dissension and often serious trouble” as well as “trouble and tension and strain and strife — which often ends up in serious violence” are far from being “carefully phrased on the basis of objective fact.” Given the long history of unlawful retaliation by the company, the statements may appear to employees to be outright threats that violence will occur. The company defends the speech, claiming courts have protected similar language “discussing strikes.” Neither case cited by the company, however, contains suggestions, unsupported by any objective evidence, that violence may result from union activity. In Boaz Spinning Co. v. NLRB, 439 F.2d 876 (6th Cir. 1971), the employer simply made reference to actual events in other plants where unionization disrupted previously friendly labor relations. In NLRB v. Sanitary Laundry, Inc., 441 F.2d 1368 (10th Cir. 1971), the employer’s letters simply discussed the economic hardships faced by striking workers.
The major point of contention regarding the speech is Griffin’s statement that the identity of union card signatories may be made public in a “court proceeding.” The company argues strenuously that almost identical language was held by us in Lundy Packing Co. v. NLRB, 549 F.2d 300 (4th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 57, 54 L.Ed.2d 74 (1977), to be not in violation of § 8(a)(1), and that the company cannot be prohibited from informing its employees of the true consequences of signing a union card.
There are two answers to the company’s claims. First, whatever may be the rule in other areas of the law, truth is not an absolute defense to a charge of unfair labor practices. Otherwise, as the union points out, the company could lawfully direct a company official to tour its plants boasting quite truthfully that the company had fired union advocates in the past. Second, the company’s reliance on the similarity between Griffin’s language and that in Lundy Packing fails to account for the familiar principle that an employer’s speech must be viewed “in the context of its labor relations setting.” NLRB v. Gissei Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 1941, 23 L.Ed.2d 547 (1969). Here, the speech was given by a high-ranking official in a company whose history of employee coercion was undoubtedly well known among its workers. Under these circumstances, Griffin’s concluding remark, “now it is for you to decide whether [publication of union cards] gives you any concern or not,” seems a rather pointed hint of retaliation. We decline to disturb the Board’s finding that the speech contained implied threats of retaliation and therefore exceeded the bounds of speech protected under § 8(c).
C. The October 1 and April 5 Notices.
On October 1, the same day that Montgomery received a warning for “intimidating” fellow employee Edward Robertson, the company posted a notice asking employees to report “threats” by union activists. The Board found that the notice violated § 8(a)(1) and we uphold that finding. Courts have enforced Board findings of § 8(a)(1) violations based on almost identical language. See, e. g., Lutheran Hospital of Milwaukee, Inc. v. NLRB, 564 F.2d 208, 211 (7th Cir. 1977), vacated on other grounds, 438 U.S. 902, 98 S.Ct. 3118, 57 L.Ed.2d 1145 (1978); NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1159-61 (5th Cir. 1977); Bank of St. Louis v. NLRB, 456 F.2d 1234, 1235 (8th Cir. 1972). Moreover, the administrative law judge found and the record indicates that the incident between Robertson and Montgomery was too minor to present any real need for such a notice.
On April 5 the company posted a notice captioned in large red print “SIGNING AN ACTWU UNION CARD CAN HAVE SERIOUS CONSEQUENCES.” The notice contained an oversized replica of a union card and went on to explain that by signing a card employees may give up the right to a secret ballot election and the right to bargain as individuals.
The company points to a number of cases in this Circuit and elsewhere, one involving Stevens itself, where courts of appeals have refused enforcement of Board orders condemning notices containing language that unionization may lead to “serious harm.” E. g., NLRB v. Holly Farms Poultry Industries, 470 F.2d 983 (4th Cir. 1972); J. P. Stevens & Co. v. NLRB, 406 F.2d 1017 (4th Cir. 1968). What the company neglects to say is that other cases enforce Board orders dealing with the same “serious harm” language. E. g., J. P. Stevens & Co. v. NLRB, 380 F.2d 292, 302-03 (2d Cir.), cert. denied, 389 U.S. 1005, 88 S.Ct. 564, 19 L.Ed.2d 600 (1967). Moreover, none of the cases cited by the company hold that the “serious harm” language is per se protected under § 8(c). Every opinion reiterates the familiar principle that an employer’s speech must be viewed “in the context of its labor relations setting.” E. g., NLRB v. Aerovox Corp., 435 F.2d 1208, 1211 (4th Cir. 1970) (quoting NLRB v. Gissell Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 1941, 23 L.Ed.2d 547 (1969)). The coercive effect of an employer’s speech in a particular labor relations setting, “is a question essentially for the specialized experience of the NLRB”. Daniel Construction Co. v. NLRB, 341 F.2d 805, 811 (4th Cir.), cert. denied, 382 U.S. 831, 86 S.Ct. 70, 15 L.Ed.2d 75 (1965).
Against the background of Stevens’ history of misconduct, the Board could reasonably conclude that the poster was unlawfully coercive. Moreover, the notice was posted only a day after Montgomery, a known union activist, disappeared from the plant. Employees certainly had reason to pause and consider the “serious consequences” resulting from union activity at that particular moment.
V.
Lastly we turn to the remedies prescribed by the Board. In general, the Board has broad discretion in its choice of remedies and courts of appeals should not disturb the Board’s judgment unless it clearly fails to effectuate the policies of the Act. NLRB v. Seven-up Bottling Co., 344 U.S. 344, 346, 73 S.Ct. 287, 288, 97 L.Ed. 377 (1953). We find no basis for concluding that the Board exceeded the limits of its discretion in this case.
The company claims Montgomery forfeited his right to reinstatement and back pay because of his “reprehensible” conduct in pressuring Preston, Robertson, and Jenkins. NLRB v. Apico Inns, 512 F.2d 1171 (9th Cir. 1975), cited by the company, affirms the principle that:
[T]he misconduct which will justify a court in refusing to enforce a Board order to rehire depends upon the degree and kind of the misconduct and each case must be decided on an ad hoc basis.
Id. at 1175. In Apico, the employee denied reinstatement had forced another employee to quit due to his sexual advances, had been drunk on the job, had made profane and derogatory remarks about management in the presence of customers, and had solicited a fellow employee to engage in prostitution. 512 F.2d at 1173. The comparison of this type of conduct to Montgomery’s two efforts at pressuring fellow employees adequately refutes the company’s contention.
The company also contends that Montgomery is not entitled to reinstatement and back pay because he lied before the administrative law judge. The administrative law judge is in a better position than the court to assess the overall credibility of a witness and to call for sanctions for deliberate misconduct. Here, the administrative law judge did not find Montgomery’s dissembling sufficiently egregious to deny him an otherwise proper remedy, and we will not disturb his conclusion.
The company challenges the “extraordinary” corporate-wide remedies imposed by the Board. In its substance the remedy is identical to that enforced by this court in J. P. Stevens & Co. v. NLRB, 612 F.2d 881 (4th Cir. 1980), cert. denied, 446 U.S. 916, 100 S.Ct. 1848, 64 L.Ed.2d 270 (October 21, 1980), enforcing 240 NLRB No. 35 (1979). The company’s extraordinary history of lawlessness calls for approval of the remedy in this case. The violations found here are probably more extensive than the interrogations and coercive statements found unlawful in the case in which we enforced the identical order.
Finally, the company complains that the Board wrongly failed to consider as a mitigating factor its “voluntary” actions aimed at insuring compliance with the Act. We see no basis for this contention. The company’s present “voluntary” action is no guaranty of future compliance. A court-enforced order provides substantially greater protection to employees.
We direct the Board to modify its order in accordance with the opinion and grant enforcement of the order as modified.
MODIFIED AND ENFORCED.
. 245 NLRB No. 20 (1979).
. “[A]n employer, who has control over [the employer-employee] relationship and therefore knows it best, cannot be heard to complain that he is without an adequate guide for his behavior. He can easily make his views known without engaging in ‘brinksmanship’ when it becomes all too easy to ‘overstep and tumble [over] the brink.’ ” NLRB v. Gissel Packing Co., 395 U.S. 575, 620, 89 S.Ct. 1918, 1943, 23 L.Ed.2d 547 (1969).
. Under company policy, a written warning represents a form of discipline less severe than discharge and more severe than a verbal warning.
. The company’s brief spends a good deal of effort in suggesting that Montgomery was attempting to manipulate the Virginia unemployment compensation system in order to leave work and receive benefits. If this was in fact Montgomery’s intent, then it simply supports his contention that he asked to leave work only if a temporary layoff could be arranged. He did not want a voluntary termination which would leave him ineligible for unemployment compensation. See Va.Code § 60.1 58(a).
. While Griffin’s statements may be literally true, they nevertheless present a distorted view of the union organizing process. Obtaining a card majority is only one means by which a union may become a bargaining representative. Moreover, the public “court proceeding” which Griffin described (actually a hearing before the Board) would occur only where the General Counsel had found probable cause to complain to the Board that independent unfair labor practices committed by Stevens precluded a valid election. See NLRB v. Gissel Packing Co., 395 U.S. 575, 613-615, 89 S.Ct. 1918, 1939-1941, 23 L.Ed.2d 547 (1969). Thus, Griffin’s statement is true only to the extent that he foresees the company’s possible future illegal behavior.
. Our dissenting brother argues that, not only is the language of the employer’s speech in Lundy Packing almost identical to that of Griffin’s address, but the “labor relations setting” of the earlier case is indistinguishable as well. We deem the two cases very different. The speeches themselves differ significantly. Griffin’s words carried implications that violence could result from union activity. His assertion that union card signatories would be identified in public was amplified by his suggestion that “it is for you to decide whether this gives you any concern or not.” Aside from a remark about union cards, the only potentially objectionable statement in Lundy’s speech was the simple assertion, “we do not want a union in this company, and we are not going to have one.” 223 NLRB at 134. The circumstances surrounding the two speeches differ even more markedly. Aside from the maintenance of an arguably unlawful no-solicitation rule, see 223 NLRB at 139 & 140 n.4, there is no suggestion in Lundy Packing that, prior to the employer’s speech, employees were aware of any unfair labor practices committed by the company. As Board Chairman Murphy pointed out in his dissent, the other unlawful acts committed by Lundy took place after his speech to employees. 223 NLRB at 140. The company’s employees, much to the contrary, were subjected to an address by the representative of an employer with two decades of history exhibiting an unrivaled willingness to violate the law.
. We need not linger long on the company’s assertion, citing a dictionary, that the language “serious consequences” differs significantly from the “serious harm” language of earlier cases. We cannot fault the Board for assuming that textile workers, unlike lawyers, generally do not go to work with thesaurus in hand.
. While our dissenting brother suggests that our holding here discards established authority, we do not perceive that, when we deal with a factual issue in the field of labor law as to whether a writing or a speech was coercive, aside from general principles, there are any authorities which are truly stare decisis. We reiterate what was said in NLRB v. Aerovox Corp., 435 F.2d 1208 (4th Cir. 1970):
In prior decisions we have held that the typical “serious harm” notice was protected by the First Amendment and the “free speech” provisions of Section 8(c). In these decisions we have concluded that a “serious harm” statement does not, alone, amount to a “threat of reprisal or force or promise to benefit.” We adhere to that proposition. We also agree, however, that ail statements and notices must be viewed in the setting in which they are made. We did not say otherwise in J. P. Stevens & Co. v. NLRB, 406 F.2d 1017 (4th Cir. 1968).... (emphasis added) Id. at 1210-11 (citations omitted). In the 1968 Stevens case, a divided panel of this court held that a similar “serious harm” notice did not violate § 8(a)(1). In that case — which this court denominated “Stevens III,” 406 F.2d at 1021, to indicate that it was the third Stevens unfair labor practice case to reach the courts— the court dealt with a notice posted during the first years of the union organizational campaign and before even the first judicial decision upholding Board findings of unfair labor practices committed by Stevens. See J. P. Stevens & Co. v. NLRB,
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_respond1_3_2
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Clifford G. MARTIN, Doing Business as Martin Music Company, Appellant, v. UNITED STATES of America, Appellee.
No, 14581.
United States Court of Appeals Ninth Circuit
Feb. 25, 1956.
Randall S. Jones, Jacob, Jones & Brown, Portland, Or., Harrison W. Call, Sacramento, Cal., Morris Galen, Portland, Or., for appellants.
Warren E. Burger, Asst. Atty., Gen., Richard M. Markus, Samuel D. Slade, Attys., Department of Justice, Washington, D. C., C. E. Luckey, U. S. Atty., Portland, Or., for appellee.
Before STEPHENS, HEALY and POPE, Circuit Judges.
STEPHENS, Circuit Judge.
This is an appeal from the judgment entered on August 10, 1954, by the District Court for the District of Oregon, awarding to the United States the sum of $12,978.10. The suit was brought by the Government on December 1,1952, for a violation of Ceiling Price Regulation (CPR) 34, issued by the Office of Price Stabilization pursuant to its authority under the Defense Production Act of 1950.
Appellant, Martin Music Company, is and was engaged in the business of supplying music by coin-operated phonographs, commonly referred to as “juke boxes”, in the states of Oregon and California. Under CPR 34, the ceiling price base period was set forth as being the period December 19, 1950, to January 25, 1951. Between these dates the appellant charged five cents (5^) per play to persons to whom he furnished music on his machines. During the period September 1, 1951, to May 5, 1952, appellant charged ten cents (10$i) per play or three for a quarter. The difference between the actual revenues received at the price of 10$i or three for a quarter, and the revenues that would have been received at the old price of 5^ per play, amounted to the sum of twenty-five thousand nine hundred fifty-six and 20/100 dollars ($25,956.20).
Appellant’s arrangements with the owners of the locations where he placed his machines, provided that he pay fifty per cent (50%) of the revenues to such owners as the cost for the use of their premises. The United States sued in the district court for a violation of the five-cent ceiling price under CPR 34, and sought treble damages in its complaint pursuant to Section 409(c) of the Defense Production Act. The trial court gave judgment to the United States, holding that “this is not a proper case for the imposition of treble damages” and awarded to the government only fifty per cent of the total overcharges ($12,-978.10), the amount the appellant received from the operation of his machines after deducting the share paid to the owners of the establishments where the juke boxes were installed. From that decision this appeal is taken.
Appellant argues for a reversal on two main points: (1) He contends that his business is specifically exempted from the application of Ceiling Price Regulation 34 by the provisions of the said regulation, because he came within the exemption as to “materials furnished for publication by any press association or feature service”. (2) He further contends that if his “services” were within the contemplation of the General Ceiling Price Regulation and of Ceiling Price Regulation 34, the said prices and such services were exempted from the provisions of the said regulation by General Overriding Regulation 14(GOR 14), 16 Fed.Reg. 6664 as amended 32A G.F.R. 1656 (1951).
As to point (1), we disagree with appellant. The General Ceiling Price Regulation (GCPR) provided in part as follows:
Sec. 14(16 Fed.Reg. 814, as amended, 32A C.F.R. 1460):
“Exemption and Exceptions. This regulation does not apply to the following:
* * -x- * * *
“(c) Prices or rentals for:
“(1) Materials furnished for publication by any press association or feature service.”
This court agrees with the interpretation given to this provision by this circuit in Schinkal v. United States, 9 Cir., 225 F.2d 882, at page 884, in which Judge Chambers stated:
“We find that the appellant makes a very fine argument, but we reject it, believing that the exemption in the act for ‘materials used for publication by any press association or feature service’ was designed to protect sources of public information against control rather than Sehinkal’s publications, if such they be.”
It is to be noted that the Schinkal case, as in this case, involved the “juke box” business.
As to point (2), we also disagree with the appellant. Under General Overriding Regulation 14, it was provided in part as follows:
“Sec. 3. Exceptions.
“(a) No ceiling price regulation now or hereafter issued by the Office of Price Stabilization shall apply to the rates, fees and charges for the supply of the services listed below and the services which fall within the scope of the occupations or categories listed below:
“(2) Actors and actresses;
* * * * * *
“(5) Artists;
“(6) Athletes;
******
“(23) Entertainers;
* * * * » *
“(39) Musicians;
* * * * * *
“(51) Program elements (package productions) furnished by independent contractors (package producers) for use in radio or television broadcasting or in motion picture, theatre, or night club * * *;
“(54) Sports officials; ******
“(77) Managers of actors, actresses and athletes.”
Appellant argues that the Office of Price Stabilization in adopting GOR 14 intended to exempt from the application of CPR 34 all entertainers, and that the “juke box” industry fits within the term “entertainer”. We agree with the government that these portions of the regulation were enacted to exempt certain recognized professional persons whose services are unique and whose charges often depend upon their personal reputations. The appellant does not fall within this classification. This position is borne out by the fact that after the adoption of GOR 14 other forms of entertainment, such as bowling alleys, golf courses, and recreational facilities were clearly covered by O.P.S. regulations and were subject to price control. Thus, the mere fact that a person’s business involved some aspect of entertainment to the public did not per se exempt it from price regulation.
It is to be noted that subsequent to the time period involved in this case an amendment was made to GOR 14 which decontrolled the juke box business. Thus, it can be assumed that before the amendment, juke boxes were under price controls, otherwise there would not have been need for such amendment.
The judgment is affirmed.
. 16 Fed.Reg. 4446, as amended, 32A C.F.R. 732.
. Defense Production Act, Public Law 774, 64 Stats, at Large 798, 50 U.S.C.A. Appendix § 2061 et seq.
. See Note 1.
. See note 1.
. See note 2.
. The government in its brief .contends that there is some doubt as to the propriety of this ruling, in view of an official O.P.S. interpretation which estab-fishes that the person who controls the juke boxes and makes collections is the seller and is liable for the full amount' of overcharges. But the government did not care to raise that issue here.
. GOR. 14, 16 Fed.Reg. 6664 as amended, 32A O.F.R. 1656 (1951). .
. See O.P.S. Release O-130, OCH, Emergency Business Control Service, Par. 70,114.
. General Overriding Regulation 14 Amendment 27 (1952).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
sc_respondentstate
|
20
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
CITIES SERVICE GAS CO. v. STATE CORPORATION COMMISSION OF KANSAS et al.
No. 85.
Argued January 13-14, 1958.
Decided January 20, 1958.
Joe Rolston argued the cause for appellant. With him on the brief were Conrad C. Mount, O. R. Stites and Mark H. Adams.
Solicitor General Rankin argued the cause for the Federal Power Commission, as amicus curiae, urging reversal. With him on the brief were Assistant Attorney General Doub, Paul A. Sweeney, Robert S. Green, Willard W. Gatchell and Howard E. Wahrenbrock.
Dale M. Stucky and Frank G. Theis argued the cause for appellees. With them on the brief was Clyde Milligan.
A joint brief of amici curiae urging affirmance was filed for the States of Arkansas, by Bruce Bennett, Attorney General; Colorado, by Duke W. Dunbar, Attorney General; Kansas, by John Anderson, Attorney General; Louisiana, by Jack P. F. Gremillion, Attorney General, and Bailey Walsh, Special Assistant Attorney General; Mississippi, by Joe T. Patterson, Attorney General; Nebraska, by C. S. Beck, Attorney General; New Mexico, by Fred M. Standley, Attorney General; North Dakota, by Leslie R. Bur gum, Attorney General; Oklahoma, by Mac Q. Williamson, Attorney General; Texas, by Will Wilson, Attorney General, and James N. Ludlum, First Assistant Attorney General; Utah, by E. R. Callister, Attorney General; and Wyoming, by Thomas 0. Miller, Attorney General. Latham Castle, Attorney General of Illinois, and William C. Wines, Assistant Attorney General, filed a statement adopting the brief filed by the various State Attorneys General as amici curiae.
Per Curiam.
The judgment is reversed. Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672; Natural Gas Pipeline Co. v. Panoma Corporation, 349 U. S. 44.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
MORROW v. TILLINGHAST, Commissioner of Immigration.
Circuit Court of Appeals, First Circuit.
October 17, 1929.
No. 2352.
James H. Kenney, of Boston, Mass., for appellant.
John W. Sehenek, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for appellee.
Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
PER CURIAM.
In the District Court for Massachusetts the appellant’s petition for a writ of habeas corpus was denied for want of jurisdiction. The immigration authorities found that at the time of her entry into the United States the appellant was mentally deficient; that her mental impairment was such as then to render her liable to become a public charge; and ordered her deported. There was substantial evidence to warrant these findings. They are therefore final..
Appeal dismissed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_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.
FORD v. UNITED STATES.
No. 2454.
Circuit Court of Appeals, First Circuit.
Nov. 8, 1930.
Dwight L. Allison, of Boston, Mass., for appellant.
John Laurence Hurley, Sp. Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. ¡3. Atty., and John J. Walsh, Jr., Asst. U. S. Atty., both of Boston, Mass., James T. Brady, Acting Gen. Counsel, U. S. Veterans’ Bureau, of Washington, D. C., William J. Hession,.Atty., U. S. Veterans’ Bureau, of Boston, Mass., and Bayless L. Guffy, Atty., U. S. Veterans’ Bureau, of Washington, D. C., on the brief), for the United States.
Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
ANDERSON, Circuit Judge.
This is a suit to recover under a war risk term insurance for $5,000, which lapsed on February 28, 1919. The appellant enlisted as a seaman in the United States Navy on June 2,1917, and was discharged on January 19, 1919. His contention is that, while the insurance was in force, he became permanently and totally disabled as a result of disease or disability, and has ever since been permanently and totally disabled. He prays for judgment in monthly payments of $28.75 from February 28, 1919, to the date of filing of his petition.
At the close of the plaintiff’s ease the court granted the defendant’s motion to order a verdict for the United States. The sole question presented on this appeal is whether the plaintiff was entitled to go to the jury.
Under section 5 of the World War Veterans’ Act, 43 Stat. 608, 38 USCA § 426, and section 13 of the War Risk Insurance Act of Act Oct. 6,1917, 40 Stat. 398, as amended by Act May 29,1918, § 1, 40 Stat. 555, the usual authority is vested in the Director and the Secretary of the Treasury to make regulations not inconsistent with the act appropriate to carry out its purposes. Under this authority, Regulation No. 11 was issued defining “total and permanent disability” as follows:
“Any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation shall be deemed, in Articles III and IV, to be total disability.
“ ‘Total disability’ shall be deemed to be ‘permanent’ whenever it is founded upon conditions whieh render it reasonably certain that it will continue throughout the life of the person suffering from it. Whenever it shall be established that any person to whom any installment of insurance has been paid as provided in Article IV on the ground that the insured has become totally and permanently disabled has recovered the ability to continuously follow any substantially gainful occupation the payment of installments of insurance shall be discontinued forthwith and no further installments thereof shall be paid so long as such recovered ability shall continue.”
We think the word “continuously” should be construed as meaning with reasonable regularity; that it does not cover mere periods of disability such as are ordinarily incident to the activities of people in generally sound health.
On the other hand, if such claimants are able to follow gainful occupations only spasmodically, with frequent interruptions due to disability, they are entitled to recover under the act.
It is well settled that, on such a question as is here presented, the plaintiff is entitled to the most favorable construction that a jury might be warranted in putting on the evidence. Heisson v. Dickinson (C. C. A.) 35 F.(2d) 270, and cases cited; Bangor & Aroostook R. R. v. Jones (C. C. A.) 36 F.(2d) 886; Gray, Administratrix, v. Davis, Director General of R. R. (C. C. A.) 294 F. 57.
And the act itself is to be liberally construed in favor of such claimants. In White v. United States, 270 U. S. 175, 180, 46 S. Ct. 274, 275, 70 L. Ed. 530, Mr. Justice Holmes said of such contracts: “The insurance was a contract, to be sure, for which a premium was paid, but it was not one entered into by the United States for gain; All soldiers were given a right to it and the relation of the Government to them if not paternal was at least avuncular. It was a relation of benevolence established by the Government at considerable cost to itself for the soldier’s good.”
We turn now to summarize the evidence in the appellant’s behalf:
He testified that after his enlistment in 1917 he was at the Hampton Eoads Naval Air Station, doing beach duty, “leading the planes in and from the water and carrying the pilots”; that in this work it was necessary for him to go into the water in order to carry the pilots from the beach and place them in the planes; that while doing this work he was taken ill, and was shipped to the Naval Base Hospital (probably) in November, 1918; that he was there about two months, and also had thirteen sick leaves while in the service; that at that time he had severe sliding pains in his back, which persisted until his discharge in January, 1919; that after his discharge ho went to work in February, 1919, at the Plymouth Eubber Company at Canton, and worked a few days, then lay off until some time in March, 1919, because of pains in his back; that he worked off and on until July, when he left the job until the last of September; that he had the pains in his back and could not seem to sleep; that this prevented him from working on the job; that in September he went back on the job, and left it again in November, when he left under the doctor’s orders and remained at home until March, 1920. Between March and Juno, 1920, he was again at work, but lost considerable time; and in June, because of his condition, he left his job and remained away from work until December, when he got married. Then he went to work and stayed until March, 1921; that his average working term was about the same as before; that for the entire period from December, 1920, until March, 1921, “I would say I got 2½ or 3 days a week”; that from April to July he lost time, and then quit the job again; that after more spasmodic work, he finally, in November, 1921, went to the Veterans’ Bureau in Boston, and was' sent to the Parker Hill Hospital on December 1, 1921, and remained there until January 28, 1922, when he was discharged, as the record shows, with his condition unchanged. He took, through the Veterans’ Bureau, vocational training at the Franklin Institute, Boston, from March, 1922, until February, 1924; then, under the same system of institutional training, he went to work for the Panther Eubber Company at Stoughton, and stayed there until the 1st of April, 1925; that since April, 1925, he has done little or no work.
On cross-examination he admitted that, during his period of vocational training, he was at various times absent without leave and guilty of intoxication. It appears that the Bureau had warned him as follows:
“You are advised that the Eehabilitation Survey Group has decided that your training be permanently discontinued on account of the following conditions:
“All reasonable efforts having been exhausted to train you to the point of employ-ability, failure to avail yourself properly of the training provided; misconduct preventing progress and ultimate placement in employment, absence without leave and failure to co-operate with the Bureau; also disorderly conduct at your place of training.”
Up to the time of the trial, he was receiving treatments from the Veterans’ Bureau called “Physio-therapy, baking my back”; that he went to the Bureau two or three times a week for such treatments; he also had, since 1921, been wearing a brace provided by the Veterans’ Bureau; since September, 1921, he had had an abscess, that discharged pus when he coughed, and had been troubled with a cough since 1920.
Dr. Lynch gave undisputed testimony to the effect that Ford was in 1929 suffering from spinal arthritis, an infectious process of the joints of the spinal column; that the case was a progressive one; that his advice to Ford was to quit work and rest; that Ford suffered pain, and some days he could neither walk nor sleep. Dr. Walsh testified that, helped out by X-rays taken shortly before the trial, he had made a diagnosis of Ford’s case, and that he had arthritis with ankylosis of the sacroiliac joint; that he first examined Ford in 1921 or 1922; that he saw no difference on the Saturday prior to the trial, and “I think he is permanently disabled.”
“Q. 13. Do you think he is able to follow a gainful occupation? A. No, he is not.
“Q. 14. What do you think about the future? A. I should think it was more doubtful whether he would improve, in fact, to do very much, if anything, for himself.
“Q. 15. From the time that you first saw him up until your last examination has there been any improvement? A. I can’t see any.”
Dr. McKenna, who attended Ford in 1919 and 1920, is dead- — -which the jury might properly consider in considering the lack of physicians’ evidence as to Ford’s condition shortly after his return from the service.
Without further detailed review of the evidence, we think it was for the jury to say whether Ford was permanently and totally disabled prior to- February 28,1919.
The judgment of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
Question: What is the total number of appellants in the case? Answer with a number.
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.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL NO. 310, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Steelworkers of America, Intervenor.
No. 76-2065.
United States Court of Appeals, District of Columbia Circuit.
Argued 19 Jan. 1978.
Decided 1 Aug. 1978.
Benjamin W. Hilley, Great Falls, Mont., with whom Emilie Loring, Great Falls, Mont., was on the brief, for petitioner.
Charles P. Donnelly, Atty., N. L. R. B., of the bar of the Supreme Court of Texas, pro hac vice, by special leave of the Court with whom Leon S. Gottlieb, Beverly Hills, Cal., and Allen J. Kwawer, Encino, Cal., John S. Irving, Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., were on the brief, for respondent.
Before ROBINSON, ROBB and WIL-KEY, Circuit Judges.
Opinion for the Court filed by WILKEY, Circuit Judge.
Opinion filed by ROBB, Circuit Judge, dissenting in part.
WILKEY, Circuit Judge:
Teamsters Local 310 petitions for review of an order of the National Labor Relations Board (NLRB) dismissing an unfair labor practice complaint. The complaint charged that three AFL-CIO unions, as members of a joint representative, breached their duty of fair representation to members of the Teamsters, in violation of § 8(b)(1)(A) of the Labor Act; and that those unions attempted to cause the employer to discipline or discharge members of the Teamsters, in violation of § 8(b)(1)(A) and (b)(2) of the Act. The Administrative Law Judge (ALJ) upheld these charges, but was reversed by the Board. We believe that the Board’s order is not supported by substantial evidence, and we accordingly remand for findings of fact and conclusions of law consistent with the evidence in the record as a whole.
I. BACKGROUND
A. FACTS
The facts, essentially undisputed, are elaborated in the decisions below and can be recapitulated briefly here. Since 1968 unions representing employees in the nonferrous mining industry have engaged in nationwide coordinated bargaining. This coordination is effected through a National Conference, a coalition of 26 unions which delegates to a Steering Committee the responsibility for setting minimum bargaining goals as guidelines for negotiations with industry employers. Before concluding a collective bargaining agreement, local negotiating committees must submit contract proposals to the Steering Committee for approval.
The employer in this case is Duval Corp., a copper company, which engages in collective bargaining on a single-employer basis. Negotiations on behalf of Duval’s workers are conducted by a negotiating committee comprised of representatives from four unions: the Steelworkers, Laborers, Operating Engineers (collectively, the AFL-CIO unions), and the Teamsters. As is the pattern in the nonferrous mining industry, these four unions have been jointly certified as the exclusive bargaining agent at Duval’s properties; the joint representatives thus function as “the union” in negotiating and signing collective-bargaining contracts. Dissension between the AFL-CIO unions and the Teamsters has existed for years and forms the backdrop of the negotiations at issue here. This dissension manifested itself in discourtesies at the bargaining table and violence in the field, in “raids” by one union on the membership lists of others, and in the filing of representation petitions designed to secure replacement of a given union by its rival.
In August 1974 Duval and the joint representatives commenced bargaining to replace the contract that was to expire 30 September 1974. In an apparent effort to insulate itself from the uncertainty attending the interunion rivalry, Duval at the outset informed all four unions of the company’s understanding that negotiations would continue on a joint basis, and that “once the Spokesman for the Union[s] informs the Company that a new Collective Bargaining Agreement has been accepted. a new agreement exists.” The ALJ found on undisputed testimony that Duval reiterated this position during the course of negotiations and that the unions agreed. The spokesman for the union negotiating committee was a member of the Steelworkers.
Joint negotiations continued amid increasing acrimony through 1 October; several issues were resolved, but Duval’s wage offer still fell short of the Steering Committee’s guideline. The negotiations recessed that evening so that the Teamsters’ membership could vote on extending the old contract further; the Teamsters met separately, as they had done on previous occasions, in order to avoid a hostile confrontation and possible violence. At this meeting, the Teamsters voted 213-42 to reject additional contract extensions and to strike; they apprised the AFL-CIO unions of their vote and set up picket lines.
Later that evening negotiations resumed between Duval and representatives of the AFL-CIO unions, at which time the company raised its wage offer to meet the Steering Committee’s guideline. The Teamsters’ representatives did not attend this session; there was a dispute, unresolved by the ALJ, as to whether they were informed of it.
On the morning and evening of 2 October the AFL-CIO unions held membership ratification meetings to consider Duval’s contract proposals. Members of the Teamsters and their representatives were refused admission to these meetings. Duval’s latest concessions were conveyed to the AFL-CIO employees at the evening session, and they voted 474 — 110 to accept the contract. The spokesman for the negotiating committee called the Teamsters’ representative, informing him that there was a contract and that the Teamsters’ pickets were “illegal”; called the Steering Committee and received authorization to accept the contract, and notified the company that “they had a collective-bargaining agreement.” The ALJ and the Board both found that, under the terms of the union-company understanding, a contract thereupon came into being.
On 3 October the Teamsters’ representatives and picket captains were told repeatedly by AFL-CIO and company officials that a contract was in effect and that the pickets were illegal. The Teamsters replied that they had not yet ratified the contract, that their ratification meeting could not be scheduled until that evening owing to the difficulty of reassembling workers dispersed by the strike, and that the pickets would not be removed until ratification had occurred. The Teamsters ratified the contract that evening and took down the picket lines.
On the afternoon of 3 October representatives of the company met with representatives of the AFL-CIO unions to negotiate a strike-settlement (“back-to-work”) agreement. The Teamsters were not notified of this meeting, and no Teamsters attended it. The spokesman for the negotiating committee (who, as noted above, was a member of the Steelworkers) proposed, and the company accepted, a provision under which Duval agreed not to commence any legal action against the AFL-CIO unions, but reserved the right “to seek redress against any individual union” and “to discharge or discipline any employee” who continued to picket or to sanction a strike or picket against the company “after 9:30 p. m. on October 2, 1974,” in violation of the new contract’s no-strike clause.
On 4 October 1974 Duval discharged two Teamsters employees and disciplined a third for picketing on 2 and 3 October in violation of the no-strike clause. These workers had been warned, directly or indirectly, that their picketing was illegal because the new contract was in effect. The ALJ found that the discharged employees had been aggressive in processing grievances, active in implementing the Teamsters’ program of soliciting members from the ranks of the AFL-CIO unions, and vocal exponents of the Teamsters’ demands in collective-bargaining negotiations. The ALJ also found considerable evidence of employer hostility to these workers. Efforts to reinstate the workers failed, and the Teamsters filed charges with the Board.
B. Course of the Litigation
The ALJ found that the AFL-CIO unions had breached their duty of fair representation to the Teamsters, in violation of § 8(b)(1)(A), by accepting the collective-bargaining contract before the Teamsters had had an opportunity to ratify it. The ALJ found that these unions had likewise breached their duty of fair representation to the Teamsters, in violation of § 8(b)(1)(A), and had attempted to cause the employer to discharge or discipline Teamsters employees, in violation of § 8(b)(2), by negotiating a strike-settlement agreement which made Teamsters liable to discharge for picketing at a time when they could not be expected to know that a contract containing a no-strike clause had been concluded. The ALJ recommended that the AFL-CIO unions be ordered to cease and desist from unfair labor practices, and, finding that their breach of duty had directly contributed to the disciplined workers’ loss of employment, recommended that they be ordered to make those workers whole for any loss of pay they had suffered. The Board, reversing the ALJ, drew different inferences from the facts, found no violations of the Act, and dismissed the complaint.
II. ANALYSIS
We review the Board’s order to determine whether its findings are “supported by substantial evidence on the record considered as a whole.” The findings and decision of the Administrative Law Judge form an important part of the “record” on which this judgment of substantiality is to be based. Under the statute, of course, the ultimate factfinder is the Board, and courts appropriately defer to “the presumptively broader gauge and experience of [its] members.” But while the Board is free to draw different inferences from the facts found by the ALJ, its inferences “should also rest upon some findings;” the Board must not “merely [state] that it disagrees,” but must “set forth the basis of [its] disagreement with the ALJ so that we may determine whether the Board’s finding is supported by substantial evidence in the record as a whole.”
A. Duty of Fair Representation
The principles of labor law that frame our decision are well established, and the parties do not disagree as to them. A union has the duty, derived from its status as certified exclusive bargaining agent under § 9(a), to represent all employees in the unit fairly. This duty governs the union’s behavior in all phases of the collective-bargaining process, from the negotiation and acceptance of collective agreements to their enforcement through the processing of grievances. Breach of the duty of fair representation violates § 8(b)(1)(A), for it tends to encourage workers to join, or discourage them from joining, certain unions, thus restraining them in the free exercise of their § 7 rights. In order to constitute an unfair labor practice, a union’s conduct must be more than merely negligent; it must be “arbitrary, discriminatory, or in bad faith,” or be based on considerations that are “irrelevant, invidious, or unfair.”
The AFL-CIO unions in this case were jointly certified with the Teamsters as the exclusive bargaining agent for Duval’s employees. Since an exclusive representative owes a duty of fair representation to all workers in the unit, not merely to its own union members, there can be no doubt, and the Board does not deny, that the AFL-CIO unions owed a general duty of fair representation to the Teamsters employees here. The Board, however, does deny that these unions breached their duty in either of the respects found by the ALJ: the ratification of the contract and the negotiation of the strike-settlement agreement. We discuss these issues in turn.
1. The Ratification Procedures. The Labor Act does not require a union to accord its rank-and-file members the right to ratify a collective-bargaining contract which it has negotiated. The ALJ reasoned, however, that once a certified representative has determined to gain membership approval before it accepts a contract, it must accord the opportunity to vote equally to all unit members. This reasoning, we think, is sound. By denying a group of workers the chance to ratify, the union risks subjecting them to the disadvantages of a contract whose acceptance they could have prevented, and risks depriving them of the benefits of a contract whose acceptance they could have ensured. By discriminating against a group of workers in this way, a union plainly fails to represent them fairly “in respect to [their] rates of pay, wages, hours..., or other conditions of employment” over the coming contract term. In this case the ALJ found that the AFL-CIO unions accepted the new contract on the basis of the ratification vote of their own members, at a time when the Teamsters had not ratified and under circumstances in which they could not ratify until the next day. Finding the action of these unions arbitrary and evidencing hostile discrimination, the ALJ concluded that a violation of the duty of fair representation had been established.
The Board, while nowhere denying that the AFL-CIO unions’ conduct was arbitrary, discriminatory, or in bad faith, seeks to rationalize its rejection of the ALJ’s conclusion on two grounds. It argues, first, that the Teamsters in effect were given an opportunity to ratify the contract when they voted on 1 October; and second, that the AFL-CIO unions owed the Teamsters no duty of fair representation with respect to contract ratification, since ratification was “entirely an internal union affair,” a mere “advisory” vote with “no effect on the terms and conditions of Teamster employment.” These arguments rest on questionable logic, derive no evidentiary support from the record, and must be rejected.
First, the Board reasons that the Teamsters 1 October ballot, in which they voted 213-42 to reject Duval’s then-current proposals and to strike, can be added to the AFL-CIO unions’ 2 October ballot, in which they voted 474-110 to accept Duval’s final offer, thus producing an overall vote of 516-323 to accept the contract. This argument is illogical, both in qualitative and in quantitative terms. The Teamsters on 1 October did not vote on the final offer that became the contract; they voted to reject further extensions of the old contract and to strike, at a time when Duval had not made its final offer and when its wage proposal was not even up to the Steering Committee’s guideline. The two votes, in short, were on different things, and to add them together, as the ALJ said, is to “add apples and oranges.” Quantitatively, the Board’s argument fares no better. There is no reason to believe that the same number of Teamsters would have voted on 2 October as voted on 1 October, or that the outcome of their vote would have been the same. There were 425 Teamsters in the bargaining unit, more than enough to have defeated the contract’s ratification, and the Board’s speculations as to what the Teamsters’ vote might have been are without evidentiary support. The AFL-CIO unions’ refusal to let the Teamsters vote on the contract cannot be justified by speculating that their vote would not have mattered.
The Board’s second argument, that the AFL-CIO unions owed the Teamsters no duty of fair representation with respect to contract ratification because ratification was “entirely an internal union affair,” is no more convincing than the first. As a general proposition, it is true that a union only breaches its duty of fair representation when it discriminates against employees “in matters affecting their employment.” This is because a union’s duty of fair representation derives from its status as exclusive bargaining representative under § 9(a); a union, therefore, can be held to represent employees unfairly only in regard to those matters as to which it represents them at all — namely, “rates of pay, wages, hours., or other conditions of employment.” Notwithstanding the correctness of its premise, however, the Board’s argument that depriving the Teamsters of the opportunity to vote on a contract that would govern them for the next three years had “no effect on the terms and conditions of [their] employment” is preposterous.
The Board starts with the proposition that, under the terms of the union-company understanding, a collective-bargaining contract would be held to come into being when the spokesman for the negotiating committee communicated its acceptance to Duval. From this, the Board concludes that membership ratification was merely “advisory” and thus was not “necessary” to contract acceptance. This may be correct as to the Duval-union relationship, but not as to the inter-union arrangement. For to say that, as between Duval and the unions, a contract came into being on 2 October (and we accept the findings of the ALJ and the Board that it did) is not to say that, as between the AFL-CIO unions and the Teamsters, the spokesman acted properly in communicating acceptance before the Teamsters had ratified.
The Teamsters’ ratification may not have been “necessary” in the sense that its absence rendered the contractual acceptance void; but this does not mean that their ratification was not “necessary” in the sense that the AFL-CIO unions properly had to get it first. All the evidence in the record indicates that membership ratification was necessary in the latter sense. The undisputed evidence revealed that all previous contracts at Duval had been submitted for membership ratification prior to acceptance. The constitutions of three of the constituent unions (Laborers, Operating Engineers, and Teamsters) required membership ratification prior to acceptance. Most importantly, the AFL-CIO unions themselves acted in accordance with the belief that ratification was required prior to acceptance, since the spokesman did not communicate acceptance of the contract to Du-val until immediately after the AFL-CIO members’ votes had been counted.
For these reasons, we conclude that the AFL-CIO unions did in fact deny the Teamsters the opportunity to ratify the collective-bargaining contract, and that in so doing those unions discriminated against the Teamsters “in matters affecting their employment.” We accordingly hold that the Board’s order dismissing this aspect of the complaint is unsupported by substantial evidence.
2. The Strike-Settlement Agreement. The ALJ found that the AFL-CIO unions breached their duty of fair representation to the Teamsters by negotiating a strike-settlement agreement that subjected Teamsters employees to discharge for picketing at a time when they could not be expected to know that a new contract containing a no-strike clause had been concluded. As noted above, the strike-settlement agreement made Duval employees liable to discharge for picketing after 9:30 p. m. on 2 October. The evidence is in dispute as to when the new contract came into being. The company representative testified that the spokesman called him to accept the contract at 9:30 p. m. on 2 October; the spokesman himself placed the time of notification at 11:00 p. m. At best, then, the strike settlement agreement made employees liable to discharge at the moment of the contract’s acceptance, when Teamsters on the picket lines could not possibly have known that a contract existed; at worst, the strike settlement agreement subjected the Teamsters to retroactive liability for picketing IV2 hours before the contract came into being. The ALJ, resolving credibility questions, found that the AFL-CIO unions had not even notified the Teamsters of the strike-settlement meeting. Again making credibility resolutions, the ALJ found that the spokesman (a member of the Steelworkers) not only had accepted, but actually had proposed, the language detrimental to the Teamsters. Finding ample evidence of AFL-CIO animus toward the Teamsters, the ALJ concluded that negotiation of the strike-settlement agreement constituted a breach of their duty of fair representation.
The Board, while explicitly accepting all of the ALJ’s credibility findings, rejected this conclusion. In its decision, the Board made no findings and gave no reason for doing so. In its brief, the Board argues that the Teamsters employees were not disciplined because of the strike settlement agreement, but for picketing in violation of a no-strike clause in a valid contract; and that they were not disciplined unknowingly, but after repeated warnings that a contract existed and that their picketing was in consequence illegal. Whatever the merit of these arguments, they are irrelevant to the issue here. The causes and the rightfulness of the actual discharges on 4 October have nothing to do with the propriety of the AFL-CIO unions’ action the day before. The ALJ found that those unions deliberately and unfairly subjected Teamsters employees to an unreasonable risk of discharge for unknowing conduct. Whether this risk was realized in precisely the way the AFL-CIO unions envisioned is immaterial in deciding whether they breached their duty of fair representation in creating it. We accordingly hold that the Board’s order dismissing this aspect of the complaint was unsupported by substantial evidence.
B. Attempt to Cause Discharge of Employees. A union violates § 8(b)(2) when, for arbitrary, irrelevant, or invidious reasons it causes or attempts to cause the employer to discriminate against an employee in regard to hire, tenure, or condition of employment. The ALJ found that the AFL-CIO unions, by negotiating the strike-settlement agreement as described above, attempted to cause Duval to discharge picketing Teamsters employees because they were part of a dissident group. The ALJ further found that the AFL-CIO unions’ conduct directly contributed to the disciplined employees’ loss of employment, and recommended that they be made whole. The Board, having found no breach of the duty of fair representation in violation of § 8(b)(1)(A), likewise found no attempt to cause discharge in violation of § 8(b)(2), and concluded that the discharges owed, not to the unions’ conduct, but. to the employer’s independent decision to discharge workers who were violating a no-strike clause in a valid contract.
In view of the sparseness of the record on this issue, we express no view on the merits of the (b)(2) claim or on the appropriateness of the ALJ’s proposed remedy. On remand, the Board will have to reconsider its conclusion that the AFL-CIO unions did not breach their duty of fair representation in negotiating the strike-settlement agreement. If it concludes that the duty was breached, the Board should consider whether that breach per se constitutes a violation of § 8(b)(2) or whether more evidence of an attempt to cause discharge is necessary. If the Board finds a violation of § 8(b)(2), it should consider whether that violation was causally related to the disciplining of the three Teamsters employees, giving appropriate weight to the ALJ’s findings of union and employer hostility towards them. In this connection the Board should also consider the relevance of the General Counsel’s determination that Duval, in firing the workers, did not discriminate against them in regard to tenure of employment in violation of § 8(a)(3).
Remanded for proceedings consistent with this opinion.
. NLRA § 8(b)(1)(A), 29 U.S.C. § 158(b)(1)(A) (1970):
(b) It shall be an unfair labor practice for a labor organization or its agents—
(1) to restrain or coerce (A) employees in the exercise of the rights [to organize and bargain collectively] guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.
. NLRA § 8(b)(2), 29 U.S.C. § 158(b)(2) (1970): (b) It shall be an unfair labor practice for a labor organization or its agents—
(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section
NLRA § 8(a)(3), 29 U.S.C. § 158(a)(3) (1970), prohibits an employer from encouraging or discouraging membership in any labor organization “by discrimination in regard to hire or tenure of employment or any term or condition of employment....”
. The ALJ’s decision is printed at 226 N.L.R.B. 775 (1976). The Board’s decision and order is printed in id. at 772, 94 L.R.R.M. 1239 (1976).
. 226 N.L.R.B. at 779.
. Id. The Board made the same finding, id. at 77,94 L.R.R.M. at 1240:
Duval’s attorney... sent a letter to the various members of the joint representatives stating, in part, that, once the spokesman for the unions had informed the Company that a collective-bargaining agreement had been accepted, a new agreement existed. Although the unions did not reply to [this] letter, [the Duval Representative’s] uncontro-verted testimony was that this position was restated during the course of the negotiations and agreed to by the unions.
. 226 N.L.R.B. at 781.
. Id. at 786; id. at 775, 94 L.R.R.M. at 1242.
. 226 N.L.R.B. at 786 & n. 29. See id. at 772 n. 1.
. Id. at 781.
. Id. The contract agreed to on the evening of 2 October contained the following provision, id. at 782:
Section 2. No strike.
(1) The Union agrees that during the life of this Agreement there shall be no strike, work stoppage, or slowdown called, authorized, approved, or sanctioned by the Union.
(2) Any employee who actively participates in, supports, or encourages any such strike, work stoppage, or slowdown shall be subject to discipline or discharge by the Company with right of appeal to the Grievance Procedure only as to the determination of the question of whether the employee so disciplined or discharged did actively participate in, support, or encourage such strike, work stoppage, or slowdown.
. Id. at 782.
. Id. at 782, 783.
. NLRA § 10(f), 29 U.S.C. § 160(f) (1970).
. Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-97, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 395, 444 F.2d 841, 853 (1970) (Leventhal, J.).
. Oil Workers Local 4-243 v. NLRB, 124 U.S. App.D.C. 113, 116, 362 F.2d 943, 946 (1966) (Leventhal, J.).
. Retail Store Employees Local 400 v. NLRB, 123 U.S.App.D.C. 360, 362, 360 F.2d 494, 496 (1965) (Fahy, J.).
. Local 441, IBEW v. NLRB, 167 U.S.App.D.C. 53, 55, 510 F.2d 1274, 1276 (1975) (Leventhal, J.).
. 29 U.S.C. § 159(a) (1970):
Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment
. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 349-50, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964).
. See C. J. Morris, The Developing Labor Law 743-44 (1971) (citing authorities).
. See, e. g. Kesner v. NLRB, 532 F.2d 1169, 1174 (7th Cir.), cert. denied, 429 U.S. 983 & 1022, 97 S.Ct. 499 (1976); Truck Drivers Local 568 v. NLRB, 126 U.S.App.D.C. 360, 367-368, 379 F.2d 137, 144-45 (1967); Local 12, United Rubber Workers v. NLRB, 368 F.2d 12, 17 (5th Cir. 1966), cert. denied, 389 U.S. 837, 88 S.Ct. 53, 19 L.Ed.2d 99 (1967); Miranda Fuel Co., Inc., 140 N.L.R.B. 181, 51 L.R.R.M. 1584 (1962), enforcement denied, 326 F.2d 172 (2d Cir. 1963). A union’s breach of its duty of fair representation also gives the aggrieved employee a right of action in state court, or in federal court under 28 U.S.C. § 1337 (1970) or LMRA § 301, 29 U.S.C. § 185 (1970). See Vaca v. Sipes, 386 U.S. 171, 179-80, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); T. Kheel, 6 Labor Law § 28.03[2a] (1974); C. J., Morris, supra note 20 at 739.
. Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916.
. Miranda Fuel Co., Inc., 140 N.L.R.B. at 185, 51 L.R.R.M. at 1586.
. E. g., Wallace Corp. v. NLRB, 323 U.S. 248, 255, 65 S.Ct. 238, 89 L.Ed. 216 (1944).
. The Board also rejected the ALJ’s conclusion that the AFL-CIO unions breached their duty of fair representation by denying the Teamsters’ business representatives access to the 2 October membership ratification meetings. See p.--of 190 U.S.App.D.C., p. 1179 of 587 F.2d supra. We see no reason to disturb the Board’s order in this respect.
. NLRA § 9(a), 29 U.S.C. § 159(a) (1970).
. Brief of NLRB at 17, 18.
. The Board states in its decision that the spokesman for the AFL-CIO unions actually made this calculation, out of deference to the Teamsters, before communicating acceptance of the contract to Duval. See 226 N.L.R.B. at 773, 94 L.R.R.M. at 1241. The ALJ, however, made no such finding, and the testimony on this subject was ambiguous. See J.A. 254 — 55.
. 226 N.L.R.B. at 785.
. Speculation about the possible results of a new vote by the Teamsters simply cannot, in any event, operate to neutralize the AFL-CIO unions’ omission in the circumstances of this case. Though the final contract offer was more favorable to the Teamsters than the proposal of 1 October, the Teamsters who voted to accept the initial offer might well have been encouraged by Duval’s concessions to press for further gains instead of ratifying the new proposal as it was. That being so, it was incumbent on the AFL-CIO unions to afford the Teamsters an opportunity to cast their ballots on the offer of 2 October. Thus, even were it reasonable to conclude that the Teamsters favoring the first offer would have voted similarly with respect to the second — a prophecy we decline to endorse — the substantial risk of the contrary result made necessary a second vote by the Teamsters. And it was untoward for the AFL-CIO unions to deny them that privilege while extending it to the AFL-CIO membership. The dissent misses this fundamental point in urging that the Board’s prediction of a particular outcome had some support in the evidence. See diss. op. at---of 190 U.S.App.D.C., at 1186-1187 of 587 F.2d.
. Miranda Fuel Co., Inc., 140 N.L.R.B. at 185, 51 L.R.R.M. at 1586. See Retana v. Apartment Operators Union Local 14, 453 F.2d 1018, 1024 (9th Cir. 1972). (“It is no answer to say that the complaint relates to appellee union’s ‘internal’ policies and practices.... As a practical matter, intra-union conduct could not be wholly excluded from the duty of fair representation, for.. internal union policies and practices may have a substantial impact upon the external relationships of members of the unit to their employer.”)
. NLRA § 9(a), 29 U.S.C, § 159(a) (1970).
. See 226 N.L.R.B. at 785; J.A. at 476.
. See J.A. at 473.
. The only evidence the Board cites for the proposition that membership ratification was “irrelevant” to contract acceptance is “the fact that earlier in 1974, the Steering Committee compelled negotiators to reject a contract at Anamax (an industry employer) despite membership ratification.” Brief of NLRB at 20 n. 7. In the Anamax situation, the Steering Committee refused to approve a proposed contract because it provided for a wage increase below the Steering Committee’s guideline. See pp. ---of 190 U.S.App.D.C., pp. 1178-1179 of 587 F.2d supra. Yet the fact that the Committee could compel rejection of a contract that the membership had accepted does not demonstrate that it could compel acceptance of a contract that the membership had rejected. As noted in the text, the practice at Duval was precisely the contrary.
. The dissent argues that “the Teamsters were accorded the same opportunity as the other employees to vote on October 2 on the final offer;” it was only because the Teamsters “were out on strike [that they] did not vote that day.” Diss. op. at-of-U.S.App.D.C., at 1186 of 587 F.2d (emphasis added). This argument, we think, is somewhat formalistic. The AFL-CIO unions knew full well that the Teamsters employees had been dispersed by the strike and could not be assembled for a vote until 3 October. Any “opportunity” the Teamsters were given to vote on 2 October, therefore, was utterly meaningless. If the AFL-CIO unions really were representing the Teamsters fairly, they would not have accorded them such a spectral opportunity to exercise their rights. Nor do we think that the AFL-CIO unions’ conduct can be rationalized on the theory that the Teamsters “forfeited” their right to vote by going on strike. See diss. op. at - of 190 U.S.App.D.C., at 1186 of 587 F.2d. Judge Robb does not deny that the Teamsters had the right under § 7 to strike after their contract had expired. Judge Robb seems to agree that the Teamsters, on the facts of this case, also had the right to an
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
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songer_circuit
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E
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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. David Alan GERNANNT, Defendant-Appellant.
No. 28550
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
June 15, 1970.
Edward J. Witten, Jacksonville, Fla. (Ct.Appted.), for appellant.
John L. Briggs, U. S. Atty., Joseph W. Hatchett, Asst. U. S. Atty., Jacksonville, Fla., for appellee.
Before WISDOM, THORNBERRY, and CLARK, Circuit Judges.
PER CURIAM:
We have directed the Clerk to place the ease on the Summary Calendar.
The only issue that this case presents for review is whether there was a basis in fact for denying David Alan Gernannt’s request for classification as a conscientious objector. We hold that there was, and affirm the district court.
David Alan Gernannt appeals from his conviction of knowingly and willfully refusing to submit to induction into the Armed Forces of the United States. 50 App. U.S.C. § 462(a). When ordered to report for induction, Gernannt was classified I-A. He reported to the induction station and submitted to pre-induction processing, but refused to take the symbolic step forward. Thereafter he was indicted, convicted upon a jury trial and sentenced to a five year term of imprisonment.
In the district court and on appeal Gernannt asserted as a defense to the criminal charge against him that his Selective Service file reflected no basis in fact to support the I-A classification, that he was entitled to be classified I-O, a conscientious objector, and that therefore the order of induction was an invalid order.
In Robertson v. United States, 5 Cir. 1969, 417 F.2d 440, 445, rev’g en banc, 1968, 404 F.2d 1141, we stated:
The scope of review in draft cases is very limited, and the range of review is the narrowest known to the law. The courts do not sit as super draft boards, substituting their judgments on the weight of the evidence, nor should they look for substantial evidence to support such determinations. Decisions of local boards are final and the courts are not to weigh the evidence to determine whether the classification made by local boards is justified, for their decisions made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no “basis in fact” for the classification which it gave the registrant.
Dickinson v. United States, 1953, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132, clarifies what is meant by a “basis in fact.”
Local boards are not courts of law and are not bound by traditional rules of evidence; they are given great leeway in hearing and considering a variety of material as evidence. If the facts are disputed the board bears the ultimate responsibility for resolving the conflict — the courts will not interfere. Nor will the courts apply a test of “substantial evidence.” However, the courts may properly insist that there be some proof that is incompatible with the registrant’s proof of exemption.
346 U.S. at 396, 74 S.Ct. at 157, 98 L.Ed. at 138.
The “basis in fact” concept was again discussed in the context of determining a registrant’s conscientious objector classification in Witmer v. United States, 1955, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428. The Court said:
[T]he ultimate question in conscientious objector cases is the sincerity of the registrant in objecting, on religious grounds, to participation in war in any form. In these cases, objective facts are relevant only insofar as they help in determining the sincerity of the registrant in his claimed belief, purely a subjective question. In conscientious objector cases, therefore, any fact which casts doubt on the veracity of the registrant is relevant. It is “affirmative evidence * * * that a registrant has not painted a complete or accurate picture. * * * [citations omitted].”
348 U.S. at 381-382, 75 S.Ct. at 396, 99 L.Ed. 434. The ultimate question is the registrant’s sincerity. Objective facts are relevant therefore only insofar as they help determine the subjective question of the sincerity of the registrant’s belief. See Riles v. United States, 5 Cir. 1955, 223 F.2d 786.
Gernannt’s selective service file listed four persons who could supply information as to the sincerity of his professed convictions against participation in war. The letters submitted by these people, however, cast doubt on Gernannt’s professed convictions against war, both as a conscientious objector and as a Jehovah’s Witness.
The selective service file also included a completed conscientious objector form which was submitted by Gernannt. With regard to his religious training and belief Gernannt stated that the nature of his belief which formed the basis of his conscientious objector claim, along with his sources of training and public expression, were all based on his regular attendance at meetings and on door-to-door missionary work. There is evidence in the file, however, that tends to refute appellant’s contention that he regularly attended meetings and engaged in door-to-door talks. Moreover, Gernannt’s mother testified on direct examination that her son had not been an active practitioner in the Jehovah’s Witnesses religion for a number of years.
It cannot be said therefore that there was no basis in fact for classifying Gernannt I-A. There is evidence in the record and in Gernannt’s stated beliefs to support an inference of his insincerity in objecting, on religious grounds, to participation in war in any form.
The judgment of the district court is affirmed.
. See Huth v. Southern Pac. Co., 5 Cir. 1969, 417 F.2d 526, Part I; Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804, Part I, and Fifth Circuit Hule 18.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_geniss
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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 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".
TIMMONS v. UNITED STATES. PORTER, Price Administrator, v. TIMMONS.
No. 5526.
Circuit Court of Appeals, Fourth Circuit.
Nov. 19, 1946.
W. S. Houck and R. A. Palmer, both of Florence, S. C. (Willcox, Hardee, Houck & Palmer, of Florence, S. C., on the brief), for appellant.
Albert M. Dreyer, Chief, Appellate Branch, Office of Price Administration, of Washington, D. C. (Claud N. Sapp, U. S. Atty., and John H. Lumpkin, both of Columbia, S. C., and Ray W. Humphrey, of Florence, S. C., on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
PER CURIAM.
This is an appeal from an order adjudging appellant guilty of contempt of court in violating an injunctive order against demanding or receiving rents in excess of the maximum rents established by the Office of Price Administration. She was sentenced to nine months imprisonment and to pay a fine of $1,000. The court found that she violated the injunctive order by making separate charges for apartments and for the furniture therein exceeding in the aggregate the ceiling price, and that these separate charges were merely a scheme to evade the orders of the Price Administrator. Appellant strenuously contends that the evidence did not warrant her being adjudged guilty of contempt, but the questions on this aspect of the case are purely factual and we cannot say that the able judge who saw and heard the witnesses was not justified in his findings. The questioning of witnesses by the court, of which complaint is made, was a matter resting in the court’s discretion and we do not think that the discretion was abused. The admission of evidence of other violations of the injunction was admissible on the question of knowledge and intent, which were put in issue by the nature of the defense. The, contention that the appellant may not be punished for a violation of the injunctive order, because the OPA legislation, which appellant was enjoined from violating, had been enacted under the war power and hostilities had ceased at the time of the order, is so lacking in merit as not to warrant discussion. Likewise without merit is the contention that the legislation had expired at the time of the order appealed from, although not at the time of the act constituting the contempt which it punished. See Stewart v. Kahn, 11 Wall. 493, 20 L.Ed. 176; Porter v. Granite State Packing Co., 1 Cir., 155 F.2d 786; Bowles v. Barde Steel Co., Or., 164 P.2d 692, 162 A.L.R. 328.
We note, however, that the sentence included both fine and imprisonment, whereas the statute authorized these punishments only in the alternative. 28 U.S.C.A. § 385; In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500. For this error the judgment appealed from must be reversed and the case remanded to the end that a proper sentence may be imposed. Kitt et al. v. United States, 4 Cir., 132 F.2d 920.
Reversed and remanded.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_state
|
37
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
SNELL v. UNITED STATES.
No. 3857.
United States Court of Appeals Tenth Circuit.
May 10, 1949.
Milton Berger, Denver, Colo., for appellant.
Haskell B. Pugh, Assistant United States Attorney, Oklahoma City, Okl., for appel-lee.
Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.
BRATTON, Circuit Judge.
An information was filed in the United States Court for Western Oklahoma charging that Harry C. Snell and Joe David Murray, with the use of loaded firearms, robbed the First National Bank of Jones, Oklahoma, of approximately $9,331, such bank then being a member of the Federal Reserve System. The defendants pleaded guilty to the charge contained in the information, and each was sentenced to imprisonment for a term of twenty-five years and to pay a fine of $10,000. About fourteen months after imposition of the sentences, the defendant Snell filed in the case a pleading in the nature of a motion to vacate the written waiver of counsel signed by him, to vacate the plea of guilty entered by him, to vacate the sentence imposed upon him, and to recall the commitment under which he was then confined in prison. The court denied the motion without hearing any evidence, and the defendant appealed.
While drawn inartistically and apparently without the aid of an attorney, the essence of the motion was that the defendant was an ignorant layman not versed in law or criminal procedure; that previous to the filing of the information in this case he had never been charged with a crime; that intermediate his arrest and his appearance before the court he was confined in jail incommunicado; that he had no opportunity to contact persons friendly to him or to learn of his constitutional or legal rights; that he did not effectively waive his right to the assistance of counsel; and that he did not have the benefit of counsel at the time he signed the written waiver, at the time he entered his plea of guilty, and at the time sentence was imposed upon him. The Sixth Amendment to the Constitution of the United States guarantees to one charged with a crime the right to the aid of counsel in his defense, and under the broad sweep of the constitutional safeguard the accused is entitled to the guiding hand of counsel at every stage of the proceedings. Thomas v. Hunter, 10 Cir., 153 F.2d 834. The right to the aid of counsel is personal, and, of course, it may be waived. But it must be waived intelligently, understandingly, and in a competent manner. Caldwell v. Hunter, 10 Cir., 163 F.2d 181, certiorari denied, 333 U.S. 847, 68 S.Ct. 649, 92 L.Ed. 1130.
The right to the assistance of counsel is one of substance, and it is not satisfied by mere legalistic formality. Willis v. Blunter, 10 Cir., 166 F.2d 721, certiorari denied, 334 U.S. 848, 68 S.Ct. 1499, 92 L.Ed. 1772; Fields v. Hunter, 10 Cir., 167 F.2d 547. It is the duty of the trial judge before whom a defendant appears without counsel to make a thorough inquiry and to take all steps necessary to insure the fullest protection of the constitutional right at every stage of the proceedings. That protecting duty imposes upon the trial judge the responsibility of determining whether there is an intelligent and competent waiver by the accused. To discharge that duty, the court must investigate as long and as thoroughly as the circumstances of the case reasonably demand. The fact that an accused may state that he is informed of his right to counsel and desires to waive such right does not automatically end the responsibility of the court. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct 316, 92 L.Ed. 309.
Here, the defendants were taken before the court three days after the commission of the offense charged in the information. The transcript of the proceedings duly certified by the official court reporter, the correctness of which is not challenged, discloses that the Assistant United States Attorney stated that the case was before the court for the waiver of indictment; that the court asked the defendants if they had an attorney and each replied in the negative; that the court asked if they desired one, and they again answered in the negative; that'the court said, “Let them, sign waiver of appointment of attorney”; that after each signed the waiver, the court inquired whether they desired to plead guilty or not guilty; that they each entered a plea of guilty; and that the sentences were immediately imposed. The court did not advise the defendants respecting their right to the assistance of counsel. The nature of the charge or the possible range of punishment was not explained to them. No questions were asked tendirig to elicit information as to whether they desired to waive their right to the assistance of counsel and to enter their pleas of guilty with an apprehension of the nature of the charge, the range of allowable punishment, possible defenses, possible circumstances in mitigation, or other possible similar factors entering into the equation. The signing of a written waiver of the right to the aid of counsel and the entering of a plea of guilty under such circumstances does not satisfy the protecting exactions of the Sixth Amendment. Von Moltke v. Gillies, supra; Uveges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184.
The United States advances the contention that the written waiver and the judgment and sentence recite that the constitutional rights of the defendant were explained to him; ’that such factual recital in the judgment and sentence import verity; and that in the absence of fraud it cannot be collaterally challenged. A factual recital of that kind contained in the judgment and sentence in a criminal case imports verity and in the absence of fraud it is not open to collateral attack in habeas corpus. Ed-minston v. Hunter, 10 Cir., 161 F.2d 691; Christakos v. Hunter, 10 Cir., 161 F.2d 692, certiorari denied, 332 U.S. 801, 68 S.Ct. 92, 92 L.Ed 381. But this is not a proceeding in habeas corpus in which the judgment in the criminal case is being attacked collaterally. It is a motion lodged in the criminal case in which the judgment is being subjected to direct attack. Therefore, the rule on which the United States relies is without application.
The order denying the motion is reversed and the cause is remanded.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_district
|
B
|
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".
JACKSON, Albert S., Jr., Appellant, v. The NATIONAL MARITIME UNION OF AMERICA, AFL-CIO.
No. 86-1544.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Feb. 19, 1987.
Decided June 30, 1987.
William D. Bubb, Sheldon N. Sandler, Young, Conaway, Stargatt & Taylor, Wilmington, Del., for appellant.
Ned R. Phillips, Phillips & Cappiello, P.C., New York City, for appellee.
Before HIGGINBOTHAM and SLOVITER, Circuit Judges, and ROTH, District Judge.
Honorable Jane R. Roth, United States District Court Judge for the District of Delaware, sitting by designation.
OPINION OF THE COURT
PER CURIAM:
In West v. Conrail, — U.S. -, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987), the United States Supreme Court explained the significance of its decision in DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In West, the Court noted that DelCostello had filled a gap in federal law by determining that the six-month limitation period prescribed in § 10(b) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(b) (1982), should be applied to hybrid claims under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1982). The Court went on, however, explicitly to hold that it did not intend, by so filling a gap in the federal law, “to replace any part of the Federal Rules of Civil Procedure with any part of § 10(b) of the National Labor Relations Act.” West v. Conrail, — U.S. —, 107 S.Ct. at 1541. Rather, the Court found that “Rule 3 of the Federal Rules of Civil Procedure provides that a civil action is commenced by filing a complaint with the court, and Rule 4 governs the procedure for effecting service and the period within which service must be made.” Id. Rule 4(j) of the Federal Rules requires that service normally be made within 120 days of filing. Id.
Here, the parties concede that appellant’s cause of action under § 301 accrued on January 7, 1985 at the earliest. The parties also concede that appellant filed his claim on July 3, 1985, in accordance with Rule 3, and within six months of the accrual of his claim. It is also agreed that appellee was served with the complaint no later than July 16, 1985, within 120 days from July 3, 1985, in accordance with Rule 4(j) of the Federal Rules, and in accordance with all other provisions of Rule 4. Since West establishes that valid Rule 4 service is valid service for purposes of § 301, and since appellant properly filed under Rule 3 within the DelCostello period, appellant’s claim was not time-barred. See West v. Conrail, 820 F.2d 90 (3d Cir.1987) (per curiam) (service valid under Rule 3 and Rule 4 is valid service for hybrid claims).
Accordingly, the district court’s order, 646 F.Supp. 699, granting summary judgment for appellee because the action was untimely will be reversed in light of West and this case remanded to the district court for further proceedings consistent with that opinion.
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_usc2
|
28
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 42. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
Ernest BROOKS, Plaintiff-Appellant, v. CENTER TOWNSHIP, a municipality incorporated in Marion County, Indiana, and Benjamin A. Osborne, Center Township Trustee and Overseer of the Poor in Center Township, Defendants-Appellees.
No. 72-1921.
United States Court of Appeals, Seventh Circuit.
Argued May 22, 1973.
Decided Oct. 3, 1973.
John T. Manning, Louis F. Rosenberg, Indianapolis, Ind., for plaintiff-appellant.
Ernest P. Schnippel, Indianapolis, Ind., for defendants-appellees.
Before CLARK, Associate Justice, KILEY, Circuit Judge, and CAMPBELL, Senior District Judge.
The Honorable Tom C. Clark, Associate Justice of the Supreme Court of the United States, Retired, is sitting by designation.
Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.
KILEY, Circuit Judge.
Plaintiff, Ernest Brooks, as representative of a class, filed this civil rights action alleging that defendants unconstitutionally terminated plaintiffs’ rent and food assistance.- On motion of defendants the district court dismissed the complaint. Brooks alone has appealed. We reverse.
The complaint was filed on June 3, 1971. The relief sought was for a declaratory judgment that defendants’ practice of terminating benefits and dispensing poor relief violated the Due Process Clause of the 14th Amendment, for an order restraining defendants from termination of assistance except under specific procedural substantive and constitutional steps, and for an order reinstating certain plaintiffs on its relief rolls. After receiving eight extensions of time to answer, defendants, on March 10, 1972, filed their motion to dismiss asserting that there was no diversity jurisdiction, insufficient service of process, failure to exhaust administrative remedies, and lack of a substantial federal question. In response to the motion plaintiffs, inter alia, asserted that the motion did not specify how service of process was insufficient under federal or Indiana law. In any event they asserted that the thrust of their action was to establish deprivation of constitutional rights by virtue of defendants’ pre-termination procedure under Indiana law, and that they were, not required to exhaust post-termination remedies before bringing suit. The district court dismissed the complaint for failure of plaintiffs to exhaust their state remedy. Ind.Code § 12-2-1-18 (1971).
We take the allegations well pleaded by Brooks as true, for purposes of this appeal. He began receiving rent and food assistance from defendants in February, 1969. In May, 1970 his rental benefits, and in February, 1971 his food benefits, were terminated without prior notice or hearing or notice of his right of post-termination administrative appeal under Indiana Statute. Ind.Code § 12-2-1-18 (1971).
Brooks contends that he was not required to exhaust the Indiana “remedy” before filing his civil rights complaint, especially where the provisions of § 12-2-1-18 do not satisfy the due process and equal protection clauses of the Fourteenth Amendment. He contends, and we agree, that § 12-2-1-18 is unconstitutional for lack of due process under Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
I
The district court’s application of the exhaustion rule was premised upon plaintiff’s failure to pursue the appellate remedy in Ind.Code § 12-2-1-18 (1971). That “poor relief” statute does not expressly deal with the termination process. Its provisions provide an appellate procedure to follow the decision of the “township trustee as overseer of the poor.” The statute contains no procedural requirements at the “trustee or overseer of the poor” level. Brooks’ claim of denial of due process is not aimed at the uneonstitutionality of the provisions of § 12-2-1-18, but rather at the lack of that statute, or any Indiana statute, to provide due process at the level of the initial termination of relief.
The provisions of § 12-2-1-18 provide an applicant for, or recipient of, poor relief an opportunity to object to a denial or termination decision by the “trustee as overseer.” The appeal is to the Board of County Commissioners, and on appeal the recipient is entitled to an opportunity to object orally or in writing, to be present at the appellate hearing and to receive notice of the decision. It is clear that the statute does not require a hearing for recipients before termination of relief. No claim is made by defendants that a pre-termination hearing is required or given.
We hold that the statute is constitutionally infirm facially for want of due process in failing to provide, inter alia, a pre-termination hearing, an effective opportunity for Brooks to defend, and want of due notice of reasons for termination. Goldberg v. Kelly, 397 U.S. 254, 264-268, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
Defendants’ arguments are of no aid in our decision of the legal question presented. The arguments are reminiscent of a chorus in a Greek tragedy chanting lamentations. The substance of the arguments is the dire effects of continuing the trend of recent welfare decisions. Nevertheless, we recognize the importance of not imposing upon Indiana any procedural requirements beyond those of rudimentary due process. Goldberg v. Kelly, supra, at 267, 90 S.Ct. 1011. But rudimentary due process was denied Brooks, who had no notice of, or reasons for, termination of benefits, no hearing and no notice of his appeal right.
The Goldberg v. Kelly case involved a federally assisted program, not a completely state funded program. It is of no consequence constitutionally that Indiana’s “township poor relief program ... is not a federally governed or directed program under the Social Security Act of 1935 or any other federal act of welfare or relief assistance” but is supported solely by the state. Indiana is required by the Fourteenth Amendment to provide due process in its laws. See Monroe v. Pape, 365 U.S. 167, 171-172, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The Civil Rights Act was intended to “override certain kinds of state laws.” Id. at 173, 81 S.Ct. at 477. And if the state through its welfare program extends basic benefits to the needy, it must not take the benefits away in an arbitrary procedure. If it does so it has violated the constitutional right of the needy to due process and consequently violated the Civil Rights Act.
II
We hold that the district court erred in deciding that Brooks was required to pursue what benefit Ind.Code § 12-2-1-18 (1971) offers to welfare recipients before filing his civil rights action.
The Supreme Court has been careful to avoid trespassing upon state jurisdiction in the civil rights area. See McNeese v. Board of Education, 373 U.S. 668, 673, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). Beginning with Monroe v. Pape, however, the Court has persisted in holding that the civil rights remedy under 42 U.S.C. § 1983 is supplementary to any state administrative remedies and that federal jurisdiction may be invoked without exhaustion of state remedies. In Pape the remedy was used in a search and seizure framework. In Mc-Neese the holding in Pape was repeated in the context of alleged segregation of students in an Illinois school. The holding was reasserted in a per curiam opinion in Damico v. California, 389 U.S. 416, 417, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967), an action under § 1983 involving the California welfare laws. In Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968), a per curiam opinion, where a prisoner claimed his civil rights were denied by state confiscation of legal materials, the Court stated that “resort to” remedies of state was unnecessary in the light of Pape, McNeese and Damico. Still another per curiam opinion, Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972), held that a three-judge court improperly dismissed a complaint under § 1983 for failure to exhaust a state remedy. Carter involved aid to dependent children, and the court on authority of Damico, “an indistinguishable ease,” held “exhaustion” was not required. In a civil rights action by Illinois relief recipients this court in Metcalf v. Swank, 444 F.2d 1353 (7th Cir. 1971), affirmed dismissal for failure to exhaust state remedy. The Supreme Court vacated and remanded for further consideration in the light of Carter v. Stanton. Metcalf v. Swank, 406 U.S. 914, 92 S.Ct. 1778, 32 L.Ed.2d 113 (1972).
In Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), the court cited McNeese and Damico for the proposition that the court had “expressly held in recent years that state administrative remedies need not be exhausted where the federal court plaintiff states an otherwise good cause of action under 42 U.S.C. § 1983.” The court however qualified that statement by saying it need not decide “[wjhether this is invariably the case.” In a factual situation such as the one there, where the state remedy was initiated and pending and the individual would be deprived of nothing until completion of the state proceeding, the question of exhaustion “remains open.” Gibson is inapposite here because no Indiana state proceeding was or is pending with which a district court decision would interfere.
For the reasons given the district court judgment is reversed and the cause is remanded with directions to reinstate Brooks to the Center Township of Marion County, Indiana relief rolls from which he was unconstitutionally dropped; and for further proceedings with respect to what just compensation is due him from defendants for what injury the evidence shows he suffered as a result of the unconstitutional arbitrary termination of his “poor relief” benefits.
Reversed and remanded with directions.
. The court assumed jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343(3) and (4).
. The district court granted leave to appeal in forma pauperis.
. The assistance record of Brooks appended to defendants’ brief is not to be considered at this stage of the proceeding.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 42. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_counsel1
|
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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SERVICE GARAGE, INC., Respondent.
No. 80-1298.
United States Court of Appeals, Sixth Circuit.
Jan. 5, 1982.
Elliott Moore, Andrew Tranovich, N. L. R. B., Washington, D. C., for N. L. R. B.
Donald R. Wellford, Boone, Wellford, Clark, Langschmidt & Pemberton, Memphis, Tenn., for respondent.
Before MERRITT and KENNEDY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
ORDER
On February 7, 1980, the National Labor Relations Board found that respondent Service Garage committed unfair labor practices during an organizing campaign in violation of Sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., by denying employees an expected pay raise during the campaign and by laying off one union adherent and discharging another. The Board ordered reinstatement with back pay of the two disciplined employees, payment of the wage increase, the posting of a notice and other incidental relief. The Board’s order is reported at 247 NLRB No. 115 (1980). The Board issued a supplemental order after it received newly discovered evidence in which it rescinded the reinstatement and back pay award to the discharged employee but otherwise affirmed the original remedy. The supplemental order is reported at 256 NLRB No. 153 (1981). The Board petitions for enforcement of its supplemental order. Respondent Service Garage contends that the Board’s findings are not supported by substantial evidence.
Service Garage was founded to service the equipment of four companies owned by a Mr. Hollis and a Mr. Bell. It later expanded to take in outside business as well. A Mr. Scott managed Service Garage from 1977 to January 23,1979 with full authority to hire and fire employees, as well as to grant wage increases. Service Garage employed a total of twelve persons in December, 1978. In December, all twelve employees signed authorization cards for the Highway & Local Motor Freight Employees Union. Scott learned of this from employee Holt in the last week of December, and on December 29, 1978, the Union sent a bargaining demand to Hollis. When the company did not respond to this demand by January 2, 1979 the Union filed a representation petition.
The Board’s complaint alleged that the employees of Service Garage expected to receive a 7% cost of living wage increase in early January, 1979, and that the company refused to grant this increase upon learning of the employees’ attempt to unionize. The Administrative Law Judge (ALJ) found that the company did not have any past practice of granting cost of living increases. The ALJ noted that there were rumors among the employees that they would receive a 7% increase, but that these rumors had no concrete source. The only concrete evidence cited by the ALJ relating to the company’s promise to grant an increase in January of 1979 was testimony that, when asked by an employee if the union activity meant that there would be no wage increase, Scott replied in the affirmative.
The ALJ found that Scott’s single, ambiguous statement did not indicate both that the company had promised its employees a cost of living increase and had decided to withdraw the increase in order to influence the outcome of thé organizing campaign. The ALJ took notice of the quandary the company would be in, in the event of a contrary holding. Under Board policy, there is a presumption that the purpose of a wage increase granted during a union campaign is to interfere with the campaign, and an employer then bears the burden of rebutting this presumption, perhaps by showing that the increase was consistent with past practice. Colonial Haven Nursing Home, Inc., 218 NLRB 1007, 1008 (1975). The ALJ noted that had the employer in this case granted a 7% wage increase in January, the evidence adduced would not have been sufficient to rebut the presumption that it was interfering with the election. He concluded that it would be unfair under these circumstances also to penalize the employer for not granting the wage increase.
The Board disagreed with the ALJ. It found that Scott’s statement clearly conveyed the message that the employees would have received a wage increase but for their union activities. In the light of this clear statement, it found the company’s past practices immaterial. It concluded somewhat simplistically that the company did not face the dilemma outlined by the ALJ because it was only required to act as if there were no union.
We find that Scott’s statement is not substantial enough evidence viewing the record as a whole to support the Board’s conclusion that a wage increase had been promised and then withdrawn because of union activities. This is particularly true in view of the AU’s contrary decision. See Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 496, 71 S.Ct. 456, 468-69, 95 L.Ed. 456 (1951). The Board failed to show sensitivity to the problem faced by an employer after Colonial Haven. Since the Board has placed on employers the burden of proving that wage increases granted during an organizing campaign are not motivated by a desire to influence the campaign, we must review the evidence closely where the charge is that failure to grant a wage increase during a campaign is an unfair labor practice.
The Board also found, contrary to the ALJ’s conclusion, an unfair labor practice based on Scott’s decision to lay off a Mr. Woods, the more junior of the company’s two tire repairmen, on January 9. Woods had been recently hired, in October of 1978. At the time Woods was hired the company handled both Hollis/Bell work and outside work. This proved to be beyond the capacity of the small shop, so a decision was made to eliminate the outside work at the beginning of 1979. The testimony, indicated that Woods was laid off in the expectation that tire repairs would diminish as a result of the cutback. There was no testimony to the contrary. There was also testimony that tire repair work was unpredictable. In fact, the tire repair work did not diminish after Woods was laid off, and he was called back on January 17, eight days later.
The Board reasoned that the timing of the layoff created a presumption that the purpose of the layoff was to discourage support for the union. The Board discounted the business justification for the layoff, finding it unbelievable because tire repair work did not diminish. The Board found further support for its conclusion in the company’s denial of the wage increase, ' which the Board found demonstrated anti-union animus.
Again, the Board’s decision does not find support in the record as a whole. All of the employees signed union authorization cards. Woods was one of the most junior. He was not one of the union leaders. There is no basis to believe that the layoff was to discourage union support, in the face of the company’s uncontradicted business justification therefor.
Accordingly, enforcement of the Board’s order is denied.
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:
|
sc_jurisdiction
|
B
|
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.
MITCHUM, dba BOOK MART v. FOSTER et al.
No. 70-27.
Argued December 13, 1971
Decided June 19, 1972
Stewart, J., delivered the opinion of the Court, in which all members joined except Powell and Rehnquist, JJ., who took no part in the consideration or decision of the case. Burger, C. J., filed a concurring opinion, in which White and BlackmüN, JJ., joined, post, p. 243.
Robert Eugene Smith. argued the cause for appellant. With him on the brief was Paul Skimek, Jr.
Raymond L..Marky, Assistant Attorney General of •Florida, argued the cause for appellees. With him on the brief were Robert L. Shevin, Attorney General, and George R. Georgieff, Assistant, Attorney General.
George F. Kugler, Jr,, Attorney General of New Jersey, and Michael R. Peñe and John DeCicco, Deputy Attorneys General, filed a brief for the State of New Jersey as amicus curiae.
Mr. Justice Stewart
delivered the opinion of the Court.
The federal anti-injunction statute provides that a federal.court “may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of. its jurisdiction,, or to protect or effectuate its judgments.” An Act of Congress, 42 U. S. C. § 1983, expressly authorizes a “suit in equity” to redress “the deprivation,” under color of state law, “of any rights, privileges, or immunities secured by the Constitution....” The question before us is whether this “Act of Congress” comes within the “expressly authorized” exception of the anti-injunction statute so as to permit a federal court in a § 1983 suit to grant an injunction to stay a proceeding pending in. a state court. This question, which has divided the federal courts, has lurked in the background of many of our recent cases, but we have not until today explicitly decided it.
I
The prosecuting attorney of Bay County, Florida, brought a proceeding in a Florida court to close down the appellant's’ bookstore as a public nuisance under the claimed authority of Florida law. The state court entered a preliminary order prohibiting continued operation of the bookstore. After further inconclusive proceedings in the state courts, the appellant filed a complaint in the United States District Court for the Northern District of Florida, alleging that „ the actions of the state judicial and law enforcement officials were depriving him of rights protected by the First and Fourteenth Amendments. Relying upon 42 U. S. C..§ 1983, he asked for injunctive and declaratory relief against the state court proceedings, on the. ground that Florida laws were being unconstitutionally applied by the state court so as to cause him great and irreparable harm; A single federal district judge issued temporary restraining orders, and,a three-judge court was convened pursuant to 28 U. S. C. §§ 2281 and 2284. After a hearing,.the three-judge court dissolved the temporary restraining orders and refused to. enjoin the state court proceeding, holding that the “injunctive relief sought here as to the proceedings pending in the Florida courts does not come, under any of the exceptions set forth in Section 2283. It is not expressly authorized by Act of Congress,, it is not necessary in the aid of this court’s jurisdiction, and it is not sought in order to protect or effectuate any judgment of this court.” 315 F. Supp. 1387, 1389. An appeal was brought directly here under 28 U. S. C. § 1253, and we noted probable jurisdiction. 402 U. S. 941.
II
In denying injunctive relief, the District Court relied on this Court’s decision in Atlantic Coast, Line R. Co. v. Brotherhood, of Locomotive Engineers, 398 U. S. 281. The Atlantic Coast Line case did not deal with the “expressly authorized” exception of the anti-injunction statute, but the Court’s opinion in that ease does bring into sharp focus the critical importance of the question now before us. For in that case we expressly rejected the view that the anti-injunction statute merely states a flexible doctrine of comity, and made clear that the statute imposes an absolute ban upon the issuance of a federal injunction against a pending state court proceeding, in the absence of one of the recognized exceptions:
“On its face the present Act is an absolute, prohibition against enjoining state court proceedings, unless the injunction falls within one of three specifically defined exceptions. The respondents here have intimated that the Act only establishes a ‘principle of comity,’ not a binding rule on the power of the federal courts. The argument implies that in certain circumstances a federal court may enjoin state court proceedings even if that action cannot be justified by any of the three exceptions. We cannot accept any such contention.... [We] hold that any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to § 2283 if it is to be. upheld....” 398 U. S., at 286-287.
It follows, in the present context, that'if 42 U. S. C. § 1983 is not within the. “expressly authorized” exception of the anti-injunction statute, then a federal equity court is wholly without power to grant any relief in a § 1983 suit seeking to stay a state court proceeding. In short, if a § 1983 action is not an “expressly authorized” statutory exception, the anti-injunction law absolutely prohibits in such an action all federal equitable intervention in a pending state court proceeding, whether civil or criminal, and regardless of how extraordinary the particular circumstances may be.
Last Term, in Younger v. Harris, 401 U. S. 37, and its companion cases, the Court dealt at length with the subject of federal judicial intervention in pending state criminal prosecutions. In Younger a three-judge federal district court in a § 1983 action had enjoined a criminal prosecution pending in. a California court. In. asking us to reverse that judgment, the appellant argued that the injunction.was in violation of the federal anti-injunction statute. 401 U. S., at 40. But the Court carefully eschewed any reliance on the statute in reversing the judgment, basing its decision. instead upon what the Court called “Our Federalism” — upon “the national policy forbidding fedéral courts to stay or enjoin pending state court proceedings except under special circumstances.” 401 U. S., at 41, 44.
In Younger, this Court emphatically reaffirmed “the fundamental policy against federal.interference with, state criminal prosecutions.” 401 U. S., at 46. It made clear that even “the' possible' unconstitutionality of a statute ‘on its face’ does not in itself justify an injunction against good-faith attempts to enforce it.” 401 U. S., at 54. At the same time, however, the Court clearly left room for federal injunctive intervention in a pending state court prosecution in certain exceptional circumstances — where irreparable injury is “both great and immediate,” 401 U. S., at 46, where the state law is “ ‘flagrantly and patently violative of express constitutional prohibitions,’ ” 401 U. S., at 53, or where there is a showing of “bad faith, harassment, or.'.. other unusual circumstances that would call for equitable relief.” 401 U. S., at, 54. In the companion case of Perez v. Ledesma, 401 U. S. 82, the Court said that “[o]nly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate.” 401 U. S., at 85. See also Dyson v. Stein, 401 U. S. 200, 203.
While the Court in Younger and its companion cases expressly disavowed deciding the question now before us — whether § 1983 comes within the “expressly authorized” exception of the anti-injunction statute, 401 U. S., at 54 — it is evident that our decisions in those cases cannot be disregarded in deciding this question. In the first place, if § 1983 is not within the statutory exception,' then the anti-injunction statute would have absolutely barred the injunction issued in Younger, as the appellant in that case argued, and there would have been no occasion whatever for the Court to decide that, case upon the “policy” ground of “Our Federalism.” Secondly, if § 1983 is not within the “expressly authorized” exception of the anti-injunction statute, then we must overrule Younger and its companion cases insofar as they recognized the permissibility of injunctive relief against pending criminal prosecutions in certain limited and exceptional circumstances. For, under the doctrine of Atlantic Coast Line, the anti-injunction statute would, in a § 1983 case, then be an “absolute prohibition” against federal equity intervention in a pending state criminal or civil proceeding — under any circumstances whatever.
The Atlantic Coast Line and Younger cases thus serve to delineate both the importance and the finality of the question now before us. And it is in the shadow of those cases that the question must be decided.
III
The anti-injunction statute goes back almost to the beginnings of our history as a Nation. In 1793, Congress enacted a law providing that no “writ of injunction be granted [by any federal court] to stay proceedings in any 'court of a state... Act of March' 2, 1793; 1 Stat. 335. The precise origins of • the legislation are shrouded in obscurity,.but the consistent understanding has been that its basic purpose is to prevent “needless friction between state and federal courts.” Oklahoma Packing Co. v. Gas Co., 309 U. S. 4, 9. The law remained unchanged until 1874, when it was amended to permit a federal court to stay state court proceedings that interfered with the administration of a federal bankruptcy proceeding. The present wording of the legislation was adopted with the enactment of Title 28 of the United States Code in 1948.
Despite the seemingly uncompromising language of the anti-injunction statute prior to 1948, the Court soon recognized that exceptions must be made to its blanket prohibition if the import and purpose of other Acts of Congress were to be given their intended scope:. So it was that, in addition to the bankruptcy law exception that Congress explicitly, recognized in 1874, the Court through the years found that federal courts were empowered. to enjoin state court proceedings, despite the anti-injunction.statute,.in carrying.out-.the will.of Congress under at least six. other.federal'-laws.: -These" covered a broad speetrum of congressional-' action:,(l) legislation providing for removal.of litigation from state to federal courts, (2) legislation limiting the liability of shipowners, (3) legislation providing for federal interpleader actions, (4) legislation conferring federal jurisdiction over farm mortgages, (5) legislation governing federal habeas corpus proceedings, and (6) legislation providing for control of prices.
In addition to the exceptions to the anti-injunction statute found to be embodied in these various Acts of Congress- the Court recognized other “implied” exceptions to thé blanket prohibition of' the anti-injunction statute. One was an “in rem” exception, allowing a federal court to enjoin a state court proceeding in order to protect its jurisdiction of a res over which it had first acquired jurisdiction. Another was a “relitiga-tioh” exception, permitting a federal court to enjoin relitigation in a state court of issues already decided in federal litigation. Still a third exception, more recently developed, permits a federal injunction of state court proceedings when the plaintiff in the federal court is the United States itself, or a federal agency asserting “superior federal interests.”
In Toucey v. New York Life Ins. Co., 314 U. S. 118, the Court in 1941 issued an opinion casting considerable doubt upon the approach to the anti-injunction statute reflected in its previous decisions. The Court’s opinion expressly disavowed the “relitigation” exception to the statute, • and emphasized generally the importance of recognizing the statute’s basic directive “of ‘hands off’ by the federal courts in.the use of the injunction..to stay litigation in a state court.” 314 U. S., at 132. The congressional response to Toucey was the enactment in 1948 of the anti-injunction statute in its present form in 28 U. S. C. § 2283, which, as the Reviser’s Note makes evident, served not only to overrule the specific holding of Toucey, but to restore “the basic law as generally understood and interpreted prior to the Toucey decision.”
. We proceed, then, upon the understanding that in determining whether § 1983 comes within the “expressly authorized” exception of the anti-injunction statute, the criteria to be applied are those reflected in the Court’s decisions prior to Toucey, A review of those decisions makes reasonably clear what the relevant criteria are. In the first place, it is evident that, in order to qualify under the “expressly authorized” exception of the anti-injunction statute, a federal law need not contain an express reference to that statute. As the Court has said, “no prescribed formula is required; an authorization need- not expressly refer to § 2283.” Amalgamated Clothing Workers v. Richman Bros. Co., 348 U. S. 511, 516. Indeed, none of the previously recognized' statutory exceptions contains any such reférence. Secondly, a federal law need not expressly authorize an injunction of a state.court proceeding in order to qualify as an exception. Three of the six previously recognized statutory exceptions contain no such authorization. Thirdly, it is clear that, in order to qualify as an “expressly authorized” exception to the anti-injunction statute, an Act of Congress must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to enjoin a state court proceeding." This is not to say that in order to come within the exception an Act of Congress must, on its face and in every one of its provisions, be totally incompatible with the prohibition of the anti-injunction statute. The test, rather, is whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only, by the stay of a state court proceeding. See Toucey, supra, at 132-134; Kline v. Burke Construction Co., 260 U. S. 226; Providence & N. Y. S. S. Co. V. Hill Mfg. Co., 109 U. S. 578, 599; Treinies v. Sunshine Mining Co., 308 U. S. 66, 78; Kalb v. Feuerstein, 308 U. S. 433; Bowles v. Willingham, 321 U. S. 503.
With these criteria in view, we turn to consideration of 42 U. S. C. § 1983.
W
Section 1983 was originally § 1 of the Civil Rights Act of 1871. 17 Stat. 13. It was.“modeled" on § 2 of the Civil Rights Act of 186.6, Í4 Stat. 27; and was enacted for the express purpose of “enforcing] the Provisions of the Fourteenth Amendment.” 17 Stat. 13. The predecessor of § 1983 was thus an important part of the basic alteration in our federal system wrought in the Reconstruction era through federal legislation and constitutional amendment. As a résult of the new. structure of law that emerged in the post-Civil War era — and especially of the Fourteenth. Amendment, which was its centerpiece — ‘the role of the Federal Government' as a guarantor of basic federal rights against state power was clearly established. Monroe v. Pape, 365 U. S. 167; McNeese v. Board of Education, 373 U. S. 668; Shelley v. Kraemer, 334 U. S. 1; Zwickler v. Koota, 389 U. S. 241, 245-249; H. Flack, The Adoption of the Fourteenth Amendment (1908); J. tenBroek, The Anti-Slavery Origins of the Fourteenth Amendment (1951). Section 1983 opened the federal courts to private citizens, offering a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and Jaws of the.Nation.
It is clear from the legislative debates surrounding passage of § 1983’s predecessor that the Act was intended to enforce the provisions of the Fourteenth Amendment “against State action,... whether that action be executive, legislative, or judicial.” Ex parte Virginia, 100 U. S. 339, 346 (emphasis supplied). Proponents of the legislation noted that state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights.
As Representative Lowe stated, the “records of * the [state] tribunals are searched in vain for evidence of effective redress [of federally secured rights].... What less than this [the Civil Rights Act of 1871] will afford an adequate remedy? The Federal Government cannot serve a writ of mandamus 'upon State Executives or upon State courts- to compel them to protect the rights, privileges and immunities of citizens.... The case has arisen... when the Federal Government must, resort to its own agencies to carry its own authority into execution. Hence this bill throws open the doors of the United States courts to'those whose rights under the Constitution are denied or impaired.” Cong. Globe, 42d Cong., 1st Sess., 374^376 (1871), This view was echoed by Senator Osborn: “If the State courts had proven themselves competent to suppress the local disorders, or to maintain law and order, we should not have been called upon to legislate..,. We are driven by existing facts to provide for the several states in the South what they have been unable to fully provide for themselves; i. e., the full and complete administration of justice in the courts. And the courts with reference to which we legislate must be the United States courts.” Id., at 653. And Representative Perry concluded: “Sheriffs, having eyes to see, see not; judges, having ears to hear, hear not; witnesses conceal the' truth or falsify it; grand and petit juries act as if they might be accomplices.... [A] 11 the apparatus and machinery of civil government, all the processes of justice, skulk away as if government and justice were crimes and feared detection. Among the most dangerous things an injured party can do is to appeal.to- justice.” Id., at App. 78.
' Those who opposed the Act of 1871 clearly recognized that the proponents, were extending federal power in an attempt to- remedy the state courts’ failure to secure federal rights. The debate was not about whether the predecessor of § 1983 extended to actions of state courts, but whether this innovation was necessary or desirable.
This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts.-
V
Section 1983 was thus a product of a vast transformation from the concepts of federalism. that had prevailed in the late 18th century when the anti-injunction. statute was enacted. The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action under color of state law, “whether that action be executive, legislative, or judicial.” Ex parte Virginia, 100 U. S., at 346. In carrying out that purpose, Congress plainly authorized the federal courts to issue injunctions in § 1983 actions, by expressly authorizing a “suit in equity” as one of the means of redress. And this Court long ago recognized that, federal injunctive relief against a state court proceeding can in some circumstances, be essential to prevent great, immediate, and irreparable loss of a person’s constitutional rights. Ex parte Young, 209 U. S. 123;. cf. Truax v. Raich, 239 U. S. 33; Dombrowski v. Pfister, 380 U. S. 479. For these reasons we conclude that, under the criteria established in our previous decisions construing the anti-injunction statute, § 1983 is an Act of Congress that falls within the “expressly authorized” exception of that law.
In so concluding, we do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. These principles, in the context of state criminal prosecutions, were canvassed at length last Term in Younger v. Harris, 401 U. S. 37, and its companion cases. They are principles that have been emphasized by this Court many times in the past. Fenner v. Boykin, 271 U. S. 240; Spielman Motor Sales Co. v. Dodge, 295 U. S..89; Beal v. Missouri Pac. R. Co., 312 U. S. 45; Watson v. Buck, 313 U. S. 387; Williams v. Miller, 317 U. S. 599; Douglas v. City of Jeannette, 319 U. S. 157; Stefanelli v. Minard, 342 U. S. 117; Cameron v. Johnson, 390 U. S. 611. Today we decide only that the District Court in this case was in error in holding that, because.of the anti-injunction statute, it was absolutely without power in this' § 1983 action to enjoin»a.proceeding pending in a state court under any circumstances whatsoever.
■ The judgment is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
28 U. S. C. §2283.
The statute provides in full: “Every person who, under color of any statute, ordinance, regulation, custom; or usage,, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Compare Cooper v. Hutchinson, 184 F. 2d 119 (CA3) (§ 1983 is an “expressly authorized” exception), with Baines v. City of Danville, 337 F. 2d 579 (CA4) (§ 1983 is not an “expressly authorized” exception).
See Dombrowski v. Pfister, 380 U. S. 479, 484 n. 2; Cameron v. Johnson, 390 U. S. 611, 613 n, 3; Younger v. Harris, 401 U. S. 37, 54. See also Lynch v. Household Finance Corp., 405 U. S. 538, 556; Roudebush v. Hartke, 405 U. S. 15.
In Younger, supra, Mr. Justice Douglas was the only member of the Court who took a position on the question now before us. He expressed the view that § 1983 is included in the “expressly authorized exception to § 2283.” 401 U. S., at 62. Cf. id., at 54.(Stewart, J., joined by Harlan, J., concurring); Perez v. Ledesma, 401 U. S. 82, 120 n. 14 (separate opinion of BreNNAN, J., joined by White and Marshall, JJ.).
Federal jurisdiction was based upon 28 U. S. C. § 1343 (3). The statute states in relevant part:
“The district courts shall have original jurisdiction of any civil action authorized by law to 'be commenced by' any person:
“(3) To- redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for eqúal rights of citizens or of all persons within the jurisdiction of-the United States...
The statute provides: "Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or' denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.”
At issue were the other two exceptions of the anti-injunction statute: “where necessa^ in aid of its jurisdiction, or to protect or effectuate its judgments.” Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U. S. 281, 288.
See First National Bank & Trust Co. v. Village of Skokie, 173 F. 2d 1; Baines, 337 F. 2d, at 593. See also Taylor & Willis, The Power of Federal Courts to Enjoin Proceedings in State Courts, 42 Yale L. J. 1169, 1194 (1933).
Samuels v. Mackell, 401 U. S. 66; Boyle v. Landry, 401 U. S: 77; Perez v. Ledesma, 401 U. S. 82; Dyson v. Stein, 401 U. S. 200; Byrne v. Karalexis, 401 U. S. 216.
“The history of this provision in the Judiciary Act of 1793 is not.fully known. We know that on December 31/ 1790, Attorney General Edmund Randolph reported to the House of Representatives on desirable changes in. the Judioiary Act of 1789. Am. State Papers, Mise., vol. 1, No. 17, pp. 21-36. The most serious question, raised by Randolph concerned the arduousness of the -circuit duties imposed on the Supreme Court justices. But the Report also suggested a number of amendments dealing with procedural matters. A section of the proposed bill submitted by him provided that 'no injunction in equity shall be granted by a district court to a judgment at law of a State court.’ Id., p. 26. Randolph explained that this clause 'will debar the district court from interfering with the judgments at. law in the State courts; for if the plaintiff and defendant rely upon the State courts, as far as the judgment, they ought to continue there as they have begun. It is enough to' split the same suit into one1 at law, and another in equity, without adding a further separation, by throwing the common law side of the ques--' tion into the State courts, and the equity side into the federal courts.’ Id., p. 34. The Report was considered by the House sitting as a Committee of the Whole, and then was referred to successive special, committees for further consideration. No action was taken until after Chief Justice Jay and his associates wrote the President that their circuit-riding duties were too burdensome. American State Papers, Misc., vol. 1, No. 32, p. 51. In response to this complaint, which was transmitted to Congress, the Act of March 2, 1793, was passed, containing in § 5, inter alia, the prohibition against staying state court proceedings.
“Charles Warren in his article Federal and State Court Interference, 43 Harv. L. Rev. 345, 347, suggests that this provision was the direct consequence of Randolph’s report. This seéfns doubtful,.in view of the very narrow purpose of Randolph’s proposal, namely, that federal courts of equity should not interfere with the enforcrnent- of judgments at law rendered in the state courts. See Taylor and Willis, The Power of Federal Courts to Enjoin Proceedings in State Courts, 42 Yale L. J. 1169, 1171, n. 14.
“There is no record of any debates over the statute. See 3 Annals of Congress (1791-93). It has been suggested that'the provision reflected the then strong feeling against the unwarranted intrusion'of federal courts upon state sovereignty. Chisholm v. Georgia, 2 Dali. 419, was decided on February 18, 1793, less.than two weeks before the provision was enacted into law. The significance of this-proximity is doubtful. Compare Warren Federal and State Court Interference, 43 Harv. L. Rev. 345, 347-348, with Gunter v. Atlantic Coast Line R. Co., 200.U. S. 273, 291-292. Much more probable is the suggestion that the provision' reflected the prevailing prejudices against equity jurisdiction. The Journal of William Monday (1927 ed.), chronicling the piroceedings of the Senate while he was one of its members (1789-1791), contains abundant evidence of a widespread hostility to chancery practice. See especially, pp. 92-94, 101-06 (debate on/the bill that became Judiciary Act of 1789). Moreover, Senator Ellsworth (soon, to become Chief Justice of the United Statesjy the principal draftsman of both the 1789 and 1793 Judiciary-Acts, often indicated a dislike for equity jurisdiction. See Brown, Life of Oliver Ellsworth (1905 ed.) 194; Journal of William Maclay (1927 ed.) 103-04; Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 96-100.” Toucey v. New York Life Ins. Co., 314 U. S. 118, 130-132.
See also Note, 38 U. Chi. L. Rev. 612 (1971); 1A J. Moore, Federal Practice 2302 (1965); H. Hart & H. Wechsler, The Federal Courts and the Federal System 1075-1078 (1953); Durfee & Sloss, Federal Injunction Against Proceedings in State Courts: The Life History of a Statute, 30 Mich. L. Rev. 1145 (1932).
As so amended, the- statute provided that state court proceedings could be enjoined “where such injunction may be authorized by any law relating to proceedings in bankruptcy.” Rev. Stat. § 720 (1874).
See French v. Hay, 22 Wall. 250; Kline v. Burke Construction Co., 260 U. S.. 226. The federal' removal provisions, both.civil and criminal, 28 U. S..C. §§ 1441-1450, provide that once a copy of the removal petition is filed with the clerk of the state court, the “State court^shall proceed no further unless and until the case, is remanded.” 28 TJ. S. C." § 1446 (e).
See Providence & N. Y. S. S. Co. v. HiU Mfg. Co., 109 U. S. 578. The Act of 1851, 9 Stat. 635,.as amended, provides that once a shipowner has deposited with the court an amount equal to the value of his interest in the ship, “all claims and* proceedings, against th.e owner with respect to the matter in question shall cease.” 46 U. S: C. § 185.
See Treinies v. Sunshine Mining Co., 308 U. S. 66. The inter-pleader Act of 1926, 44 Stat. 416, as currently written provides that in “any civil action of interpleader... a district court may... enter its order restraining [all claimants]... from instituting or prosecuting any proceeding in ány. State or United States court affecting, the property, instrument or obligation involved in the interpleader action.” 28 U. S. C. §2361.
See Kalb v. Feuerstein, 308 U. S. 433. The Frazier-Lemke Farm- ■ Mortgage Act, as amended in 1935, 49 Stat, 944, provides that in situations to which it is applicable a federal court shall “stay all judicial or official proceedings in any court.” 11 U. S. C. § 203 (s) (2) (1940 ed.).
See Ex parte Royall, 117 U. S. 241, 248-249, The Federal Habeas Corpus Act provides that a federal court before which a habeas corpus proceeding is pending may “stay any proceeding against the person detained in any State Court... for any matter involved in the habeas corpus, proceeding.” 28 U. S. C. §2251.
Section 205 (a) of the Emergency Price Control Act of 1942, 56 Stat. 33, provided that the Price Administrator could request a federal district court to enjoin acts that violated or threatened to violate the Act. In Porter v. Dicken, 328 U. S. 252, we held that this authority was broad enough to justify an injunction to restrain state court procéedings. Id., at 255. The Emergency Price Control Act was thus considered a congressionally authorized exception to the anti-injunction statute. Ibid.; see also Bowles v. Willingham, 321 U. S. 503. Section 205 (a) expired in 1947. Act of July 25. 1946, 60 Stat. 664.
See, e. g., Toucey v. New York Life Ins. Co., 314 U. S., at 135— 136; Freeman v. Howe, 24 How. 450; Kline v. Burke Construction Co., 260 U. S. 226.
See, e. g., Toucey, supra, at 137-141; Dial v. Reynolds, 96 U. S. 340; Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356. See generally 1A J. Moore, Federal Practice 2302-2311 (1965).
Letter Minerals Inc. v. United States, 352 U. S. 220; NLRB v. Nash-Finch Co., 404 U. S. 138.
The Reviser’s Note states in part: “The exceptions specifically include the words 'to protect or effectuate' its judgments,’ for lack of which the Supreme Court held that the Federal courts are without pow;er to enjoin relitigation of casés and controversies fully adjudicated by such courts. (See Toucey v. New York Life Insurance Co.,... 314 U. S. 118....) "A vigorous dissenting opinion [314 U. S, 141] notes that at the time of the 1911 revision of the Judicial Code, the power of the courts... of the United States to protect-their judgments was unquestioned and that the revisers of that code noted no change and Congress intended no change.” H. R. Rep. No. 308, 80th Cong., 1st Sess., A181-182 (1947).
Ibid.
Cf. Amalgamated Clothing Workers v. Richman Bros. Co., 348 U. S. 511, 521 (dissenting opinion).
See nn. 12, 13, 14, 15, 16, and 17, supra.
See nn. 12, 13,
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
|
sc_issuearea
|
C
|
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.
MASSACHUSETTS v. OAKES
CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS
No. 87-1651.
Argued January 17, 1989
Decided June 21, 1989
James M. Shannon, Attorney General of Massachusetts, argued the cause for petitioner. With him on the briefs were Phyllis N. Segal and A. John Pappalardo, Deputy Attorneys General, and Madelyn F. Wessel, Judy G. Zeprun, and H, Reed Witherby, Assistant Attorneys General.
Richard J. Vita argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for the State of Indiana by Linley E. Pearson, Attorney General, and William E. Daily, Deputy Attorney General; for the District Attorney for the Middle District of the Commonwealth of Massachusetts by John J. Conte, pro se, and Daniel F. Toomey; for Citizens for Decency Through Law, Inc., by Bruce A. Taylor; for Covenant House et al. by Gregoi~y A. Loken; and for the Massachusetts Society for Prevention of Cruelty to Children et al. by Elizabeth K. Spahn.
Briefs of amici curiae urging affirmance were filed for the American Sunbathing Association, Inc., by Robert T. Page; and for the Law and Humanities Institute by Edward de Grazia.
Justice O’Connor
announced the judgment of the Court and delivered an opinion,
in which The Chief Justice, Justice White, and Justice Kennedy join.
This case involves an overbreadth challenge to a Massachusetts criminal statute generally prohibiting adults from posing or exhibiting nude minors for purposes of visual representation or reproduction in any book, magazine, pamphlet, motion picture, photograph, or picture.
I
The statute at issue m this case, Mass. Gen. Laws § 272:29A (1986), was enacted in 1982. It provides as follows:
“Whoever with knowledge that a person is a child under eighteen years of age, or whoever while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to pose or be exhibited in a state of nudity or to participate or engage in any live performance or in any act that depicts, describes or represents sexual conduct for purpose of visual representation or reproduction in any book, magazine, pamphlet, motion picture film, photograph, or picture shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand dollars nor more than fifty thousand dollars, or by both such a fine and imprisonment.
“It shall be a defense in any prosecution pursuant to this section that such visual representation or reproduction of any posture or exhibition in a state of nudity was produced, processed, published, printed or manufactured for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library.
“As used in this section, the term ‘performance’ shall mean any play, dance or exhibit shown or presented to an audience of one or more persons.”
Another statute, Mass. Gen. Laws §272:31 (1986), defines “nudity” as
“uncovered or less than opaquely covered post-pubertal human genitals, pubic areas, the post-pubertal human female breast below a point immediately above the top of the areola, or the covered male genitals in a discernibly turgid state. For purposes of this definition, a female breast is considered uncovered if the nipple or the nipple or areola only are covered. In the case of pre-pubertal persons nudity shall mean uncovered or less than opaquely covered pre-pubertal human genitals or pubic area.”
In 1984, respondent Douglas Oakes took approximately 10 color photographs of his partially nude and physically mature 14-year-old stepdaughter, L. S., who at the time was attending modeling school. Tr. 22-30. The photographs depict L. S. sitting, lying, and reclining on top of a bar, clad only in a red and white striped bikini panty and a red scarf. The scarf does not cover L. S.’s breasts, which are fully exposed in all the photographs. The dissent below described the photographs as “sexually provocative photographs of the type frequently found in magazines displayed by storekeepers in sealed cellophane wrappers.” 401 Mass. 602, 606, 518 N. E. 2d 836, 838 (1988). See also Brief for Law and Humanities Institute as Amicus Curiae 47 (referring to the photographs as “pin-up” art).
Oakes was indicted and tried for violating § 29A. The jury returned a general verdict of guilty, and Oakes was sentenced to 10 years’ imprisonment. Because the jury was not instructed on the “sexual conduct” portion of §29A, Tr. 101-104, its verdict rested on a finding that Oakes “hire[d], coerce[d], solicit[ed] or entice[d], employ[ed], procure[d], use[d], cause[d], encourage[d], or knowingly permit[ted]” L. S. to “pose or be exhibited in a state of nudity.” The acts proscribed by § 29A are listed disjunctively, so it is impossible to ascertain which of those acts the jury concluded Oakes had committed. The jury was instructed on the exemptions set forth in § 29A, Tr. 104, but its guilty verdict indicates that the exemptions were found to be inapplicable.
A divided Massachusetts Supreme Judicial Court reversed Oakes’ conviction. The majority first held that Oakes’ posing of L. S. was speech for First Amendment purposes because it could not “fairly be isolated” from the “expressive process of taking her picture.” 401 Mass., at 604, 518 N. E. 2d, at 837. Without addressing whether § 29A could be constitutionally applied to Oakes, the majority struck down the statute as substantially overbroad under the First Amendment. The majority concluded that §29A “criminalize[d] conduct that virtually every person would regard as lawful,” and would make “a criminal of a parent who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool.” Id., at 605, 518 N. E. 2d, at 838. The dissent argued that Oakes’ conduct did not constitute speech for First Amendment purposes: “Soliciting, causing, or encouraging, or permitting a minor to pose for photographs is no more speech than is setting a house afire in order to photograph a burning house.” Id., at 610, 518 N. E. 2d, at 841. The dissent also argued that even if the “nudity” portion of § 29A was overbroad, that portion should have been severed from the remainder of the statute. Id., at 611, n. 4, 518 N. E. 2d, at 841, n. 4.
We granted certiorari to review the decision of the Massachusetts Supreme Judicial Court, 486 U. S. 1022 (1988), and now vacate and remand.
II
The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others. Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 574 (1987); Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 503-504 (1985). See generally Monaghan, Overbreadth, 1981 S. Ct. Rev. 1. The doctrine is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions. Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 634 (1980). Overbreadth doctrine has wide-ranging effects, for a statute found to be substantially overbroad is subject to facial invalidation. We have therefore referred to overbreadth as “man-ifestl[y] strong medicine” that is employed “sparingly, and only as a last resort.” Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973).
We have addressed overbreadth only where its effect might be salutary. In Bigelow v. Virginia, 421 U. S. 809 (1975), the defendant argued that the criminal statute under which he was convicted was overbroad. After the defendant was convicted, the statute was amended. The amendment eliminated any possibility that the statute’s former version would “be applied again to [the defendant] or [would] chill the rights of others.” Id., at 817-818. Because, “[a]s a practical matter,” the question of the statute’s “overbreadth ha[d] become moot for the future,” we declined to “rest our decision on overbreadth,” choosing instead to consider whether the former version of the statute had been constitutionally applied to the defendant. Id., at 818.
In our view, Bigelow stands for the proposition that overbreadth analysis is inappropriate if the statute being challenged has been amended or repealed. The statute in Bigelow was challenged on both overbreadth and as-applied grounds. There was no need for any comment on the over-breadth challenge, as the defendant’s conviction could have been — and indeed was — reversed on a narrower and alternative ground, i. e., that the statute was unconstitutional as applied. See id., at 829. That overbreadth was discussed and rejected as a mode of analysis is, we think, evidence that application of Bigeloiv does not depend on whether other questions presented will be answered adversely to the defendant. Indeed, the Bigeloiv overbreadth analysis appears to have been based on the argument made by the State that the amendment of the statute being challenged eliminated the “justification for the application of the overbreadth doctrine.” Brief for Appellee in Bigelow v. Virginia, O. T. 1974, No. 73-1309, p. 19, n. 10.
The procedural posture of the overbreadth question in this case is indistinguishable from that in Bigelow. After we granted certiorari, §29A was amended. See 1988 Mass. Acts, ch. 226. The current version of §29A, which is set forth in the margin, adds a “lascivious intent” requirement to the “nudity” portion, but not the “sexual conduct” portion, of the former version of § 29A. In addition, the current version of § 29A contains no exemptions. Because it has been repealed, the former version of § 29A cannot chill protected expression in the future. Thus, as in Bigelow, the over-breadth question in this case has become moot as a practical matter, and we do not address it.
There is nothing constitutionally offensive about declining to reach Oakes’ overbreadth challenge. Overbreadth is a judicially created doctrine designed to prevent the chilling of protected expression. An overbroad statute is not void ab initio, but rather voidable, subject to invalidation notwithstanding the defendant’s unprotected conduct out of solicitude to the First Amendment rights of parties not before the court. Because the special concern that animates the over-breadth doctrine is no longer present after the amendment or repeal of the challenged statute, we need not extend the benefits of the doctrine to a defendant whose conduct is not protected. See Pope v. Illinois, 481 U. S. 497, 501-502 (1987) (“Facial invalidation” of a repealed statute “would not serve the purpose of preventing future prosecutions under a constitutionally defective standard”). Cf. Upper Midwest Booksellers Assn. v. Minneapolis, 602 F. Supp. 1361, 1369 (Minn.) (amendment of ordinance rendered overbreadth challenge moot, but no conviction involved), aff’d, 780 F. 2d 1389 (CA8 1985). We also note that the amendment of a statute pending appeal to eliminate overbreadth is not different, in terms of applying the new law to past conduct, from a state appellate court adopting a limiting construction of a statute to cure overbreadth. We have long held that in such situations the statute, as construed, “may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendants.” Dombrowski v. Pfister, 380 U. S. 479, 491, n. 7 (1965) (citations omitted). See also Broadrick v. Oklahoma, 413 U. S., at 613 (“Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute”).
HH HH b — I
Massachusetts has not asked us to consider Oakes’ as-applied challenge to the former version of § 29A in its petition for certiorari, and we took the case to decide the over-breadth question alone. When the sole question on which we granted certiorari has become moot, our usual course, in cases coming to us from state courts when part of the dispute remains alive, is to vacate the judgment below and remand for further proceedings. See DeFunis v. Odegaard, 416 U. S. 312 (1974). We have dismissed state court cases rather than vacate and remand them, but only in situations where no state or federal claim remained once the particular claim before us became moot,, thereby making a remand unnecessary. See Attorney General of New Jersey v. First Family Mortgage Corp., of Florida, 487 U. S. 1213 (1988) (underlying mortgage foreclosure dispute ended because debt was satisfied); Michigan v. Shabaz, 478 U. S. 1017 (1986) (respondent died); Tiverton Board of License Comm’rs v. Pastore, 469 U. S. 238 (1986) (respondent went out of business and no longer had any claim to press); Aikens v. California, 406 U. S. 813 (1972) (petitioner obtained complete relief under state constitution before federal constitutional claim was decided); Ditson v. California, 372 U. S. 933 (1963) (petitioner executed before petition for certiorari was acted upon). Here, a live dispute remains as to whether the former version of § 29A can constitutionally be applied to Oakes. Thus, we vacate the judgment below and remand for further proceedings.
Vacated and remanded.
For background on the enactment of § 29A, see Boston Globe, June 14, 1982, p. 17, col. 1; Boston Globe, July 21, 1982, p. 17, col. 2.
The current version of §29A, codified at Mass. Gen. Laws §272:29A (Supp. 1988), provides:
“(a) Whoever, either with knowledge that a person is a child under eighteen years or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, and with lascivious intent, hires, coerces, solicits, or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material, shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand nor more than fifty thousand dollars, or by both such fine and imprisonment.
“(b) Whoever, either with knowledge that a person is a child under eighteen years of age or while in possession of such facts that he should have reason to know that such person is a child under eighteen years of age, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to participate or engage in any act that depicts, describes, or represents sexual conduct for the purpose of representation or reproduction in any visual material, or to engage in any live performance involving sexual conduct, shall be punished by imprisonment in the state prison for a term of not less than ten nor more than twenty years, or by a fine of not less than ten thousand nor more than fifty thousand dollars, or by both such fine and imprisonment.
“(c) In a prosecution under this section, a minor shall be deemed incapable of consenting to any conduct of the defendant for which said defendant is being prosecuted.
“(d) For purposes of this section, the determination whether the person in any visual material prohibited hereunder is under eighteen years of age may be made by the personal testimony of such person, by the testimony of a person who produced, processed, published, printed or manufactured such visual material that the child therein was known to him to be under eighteen years of age, or by expert testimony as to the age of the person based upon the person’s physical appearance, by inspection of the visual material, or by any other method authorized by any general or special law or by any applicable rule of evidence.”
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_appel1_3_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
COMMISSIONER OF INTERNAL REVENUE v. O’DONNELL.
No. 8186.
Circuit Court of Appeals, Ninth Circuit.
June 14, 1937.
Robert H. Jackson, Asst. Atty. Gen., and J. Louis Monarch, Francis I. Ilowley, and
A. F. Prescott, Sp. Assts. to Atty. Gen., for petitioner.
Thomas R. Dempsey and A. Calder Mackay, both of Los Angeles, Cal. (Howard W. Reynolds, of Los Angeles, Cal., of counsel), for respondent.
Before WILBUR, MATHEWS, and HANEY, Circuit Judges.
MATHEWS, Circuit Judge.
Upon auditing respondent’s income tax returns for 1925, 1926, 1927, 1928, and 1929, the Commissioner of Internal Revenue determined that there were deficiencies in the respective amounts of $505.59, $3,966.54, $7,003.28, $5,392.81, and $979.41, and so notified respondent-. Respondent petitioned the Board of Tax Appeals for redetermination of the alleged deficiencies. The Board decided that, instead of deficiencies, there were overpayments of respondent’s income tax for 1925, 1926, and 1927 in the respective amounts of $2,950.44, $800.35, and $3,003.28; that for 1928 there was a deficiency of $30 only; and that for 1929 there was neither a deficiency nor an overpayment. The Commissioner seeks reversal of the Board’s decision.
Facts found by the Board and not disputed by the Commissioner are as follows r
On and prior to January 9, 1918, respondent was thé owner and holder of one-third of all the issued and outstanding capital stock of the San Gabriel Petroleum Company, a corporation, hereafter called San Gabriel, by which certain oil properties were held under lease. Respondent on that date sold and transferred all his San Gabriel stock to the Petroleum Midway Company, Limited, a corporation, hereafter called Midway, by a written contract, hereafter called the San Gabriel contract, which provided that Midway would acquire all of San Gabriel’s assets, including its oil leases, pay all its debts, and then dissolve it. The contract further provided:
“Second party [Midway] agrees to purchase, and does hereby purchase, all of said first party’s [respondent’s] stockholdings in [San Gabriel], and agrees to pay therefor, at the times and in the manner hereinafter specified, one third (%) of the net profits received by it, its successors or assigns, from the development and operation of the properties described and enumerated in the leases, contracts and agreements now owned by [San Gabriel], for and during the full, unexpired term or terms of said leases, contracts and agreements, and each of them. • • •
“And it is further understood and agreed, by and between the parties hereto, that the net profits received by second party from the development and operation of said leasehold interests and properties shall be ascertained and determined quarterly, for quarters ending respectively on March 31, June 30th, September 30th, and December 31st, of each year, and in ascertaining and determining same, there shall be deducted from the gross receipts, in addition to other deductions, a sum of money equal to six (6%) per cent, per annum, figured on the net advances made by second party for the payment of the debts of [San Gabriel] and for the development of its prqperties, and when the net profits have so been ascertained, one-third (%) thereof shall be paid over to first party within Twenty (20) days next succeeding the end of each quarter.”
The right to receive one-third of the net profits from the development and operation of the leased properties therein referred to, was the only right which the contract vested or purported to vest in respondent.
In accordance with the contract, Midway acquired all of San Gabriel’s assets, including its oil leases, paid all its debts, and then dissolved it. Thereafter Midway developed and operated the oil properties covered by the leases and paid respondent one-third of its net profits therefrom, from the date of the contract to August 4, 1926. Payments so made to respondent in 1925 were $50,-270.02, and in 1926 were $12,842.48. For each of those years respondent claimed an allowance for depletion. His claim was rejected by the Commissioner, but was sustained by the Board.
Respondent was married in December, 1925. Desiring to provide a separate private income for his wife and to make suitable provision for her maintenance and support, respondent in March, 1926, told her that he would give her his interest, income, or rights under the San Gabriel contract. He does not remember the exact words he used, but his purpose was to make her an irrevocable gift.
On August 4, 1926, respondent wrote and delivered to Midway a letter reading as follows :
“Please be advised that the income accruing to me in 'connection with the San Gabriel [contract] has been transferred as of March 31, 1926, to Mrs. Thos. A. O’Donnell [respondent’s wife], to whom you will make all future payments."
Thereafter respondent exercised no control over the San Gabriel contract and received no payments thereunder. All payments subsequently accruing under the contract were made to respondent’s wife. Payments so made to her in 1926, 1927, 1928, and 1929 were in the respective amounts of $15,535.85, $27,069.99, $21,451.24, and $4,-080.95. These sums were received by her agent, C. H. Norton, who deposited them in a bank to her credit. She had the exclusive use, ownership, and control of this money, used it for her own purposes and, in separate returns filed by her, reported it for taxation as her separate income. The Commissioner ruled that the money so paid to respondent’s wife was taxable income of respondent. The Board reversed that ruling.
The Commissioner filed, with his petition for review, fifteen assignments of error. Eight of the assigned errors (assignments 2, 3, 4, 6, 7, 8, 10, and 12) are not specified in the Commissioner’s brief, as required by our rule 24, and are therefore disregarded. Mutual Life Ins. Co. v. Wells Fargo Bank & Union Trust Co. (C.C.A. 9) 86 F.(2d) 585, 587; Hultman v. Tevis (C.C.A. 9), 82 F.(2d) 940, 941.
The remaining assignments raised two questions: (1) Whether respondent was entitled to a depletion allowance for 1925 and 1926, and (2) whether the payments made to respondent’s wife in 1926, 1927, 1928, and 1929 constituted taxable income of respondent.
Section 214(a) of the Revenue Act of 1924, 43 Stat 269, 270, provides:
“In computing net income there shall be allowed as deductions:
• •••••
“(9) In the case of mines, oil and gas wells, ... a reasonable allowance for depletion . . ., according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. In the case of leases the deduction allowed by this paragraph shall, be equitably apportioned between the lessor and lessee.”
Similar provisions are found in section 214(a)(9) of the Revenue Act of 1926, 44 Stat. 26, 27.
The Commissioner concedes that, if in 1925 and 1926, before making the gift to his wife, respondent had an economic interest m the oil in place in the leased properties mentioned in the San Gabriel contract, he was entitled to a depletion allowance under section 214(a) of the Revenue Acts of 1924 and 1926, but contends that respondent had no such interest and was, therefore, not entitled to a depletion allowance for those years. This contention must be rejected. One who is entitled, as respondent was, to receive from the holder of an oil lease a third of the net profits from the development and operation of the oil property covered by the lease cannot be said to have no economic interest in the oil in place in such leased property. Commissioner v. Elliott Petroleum Corp. (C.C.A. 9) 82 F.(2d) 193, 194, and cases there cited. See, also, Obispo Oil Co. v. Welch (C.C.A. 9) 85 F.(2d) 860, reversed on other grounds in 57 S.Ct. 684, 81 L.Ed. -; Bankline Oil Co. v. Commissioner (C.C.A. 9, 1937) 90 F.(2d) 899.
As to the second question, the Commissioner concedes that respondent intended to and did make his wife an irrevocable gift of all income accruing to him under the San Gabriel contract after August 4, 1926, but challenges the Board’s finding that respondent intended to give his wife his entire interest in the contract. The Board’s finding is amply supported by the evidence. Respondent testified:
“I had considerable conversation with [my wife]. I don’t know, at this late date, what words I used. I can give you the substance. With this explanation, we hadn’t been married very long, and had just gotten home and I had made out a will and brought it home and showed her a copy of it. At that time I told her I ha'd turned over to her one of the most substantial properties I had for her personal income. That was along in March, sometime. The will was made on March 19th, 1926, and the conversation I had with my wife was to the effect that I was not only providing for her in my will, but I was turning over to her, for her personal use, a valuable income which was part of my wealth. At that time I hadn’t yet written the letter to [Midway], although I had told her that I was doing that.
“In my conversation with her I referred to the agreement dated January 9; 1918, between me and [Midway], as a substantial piece of property which wholly consisted of income. I couldn’t be positive just what I said, what the conversation was. The purpose of it was to assure her that I was preparing and was then turning over to her a valuable more or less permanent income. My purpose in turning it over to her was, at that time I was considered a person of substantial wealth; Mrs. O’Donnell [respondent’s wife] was not, and I thought she was entitled to a personal income in which she wouldn’t have to ask me at all times for spending money or whatever she wanted to use it for.
“It was my intention that the rights which I had under this contract be transferred to Mrs. O’Donnell as her sole and separate property.”
The only right or interest respondent ever had in or under the contract was the right to receive one-third of the net profits from the development and operation of the oil properties mentioned therein. This right, according to his testimony, he intended to give to his wife. If so, he intended to give her his entire interest in the contract. The Board’s finding to that effect, being supported by substantial evidence, is conclusive on this court. Holmby Corp. v. Commissioner (C.C.A. 9) 83 F.(2d) 548, 549; Commissioner v. Bank of California (C.C.A. 9) 80 F.(2d) 389, 390; Commissioner v. Eldridge (C.C.A. 9) 79 F.(2d) 629, 630, 102 A.L.R. 500; Commissioner v. Gerard (C.C.A. 9) 75 F.(2d) 542, 544. It thus conclusively appears that respondent intended to give his wife everything he had in or under the San Gabriel contract, retaining nothing therein or thereunder for himself.
It is true the mere intention, or the mere expression of it to respondent’s wife, was not sufficient to complete the gift. As stated in the Commissioner’s brief, “something remained to be done,” but that “something” was done when respondent wrote and delivered to Midway his letter of August 4, 1926, directing that all subsequent payments under the contract be made to his wife. The.Board’s opinion correctly states:
“Petitioner [respondent here] gave his wife the means of obtaining possession and control of the thing given in the only manner possible, by informing JMidway] that he had transferred the income accruing to him under said contract to his wife, and directing [Midway] to make all future payments to her. . .- .
“When the petitioner gave [Midway] the letter informing it that all of petitioner’s rights were assigned to his wife and directed it to make all future payments to his wife, he made a delivery of the corpus of the gift to her; he gave her the means of obtaining possession and control of the gift, and the gift was thereby completed. ...”
Respondent having transferred to his wife his entire interest in the property — the San Gabriel contract — which produced the income here involved, all income subsequently arising therefrom was taxable, not to him, but to his wife. Blair v. Commissioner, 300 U.S. 5, 12, 57 S.Ct. 330, 81 L.Ed. —; Hall v. Burnet, 60 App.D.C. 332, 54 F.(2d) 443, 444, 83 A.L.R. 86; Helvering v. Seatree, 63 App.D.C. 274, 72 F.(2d) 67, 68; Commissioner v. Field (C.C.A. 2) 42 F.(2d) 820, 822; Lowery v. Helvering (C.C.A. 2) 70 F. (2d) 713, 714; Copland v. Commissioner (C.C.A. 7) 41 F.(2d) 501, 504.
Cases cited by the Commissioner are readily distinguishable. In Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731, the taxpayer, an attorney at law, had made an agreement with his wife whereby his future earnings were' to be received and owned by them jointly, Daugherty v. Commissioner (C.C.A. 9) 63 F.(2d) 77, involved a similar agreement. In Corliss v. Bowers, 281 U.S. 376, 50 S.Ct. 336, 74 L.Ed. 916, the taxpayer had transferred a fund to trustees, in trust, to pay the income to his wife, but had reserved to himself power to alter or abolish the trust at will. In Burnet v. Leininger, 285 U.S. 136, 52 S.Ct. 345, 76 L.Ed. 665, the taxpayer, a member of a partnership, had assigned future partnership income to .bis wife. The partnership continued as before, the respondent being a member, the wife not. In Ward v. Commissioner (C.C. A. 9) 58 F.(2d) 757, the taxpayer, being the holder of a 99-year lease, sublet the leased property and assigned to his wife the rentals payable to him by his sublessees, but did not assign the lease itself or all his rights thereunder. _ These cases, therefore, are not in point.
Decision affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer:
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sc_issuearea
|
A
|
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.
MICHELSON v. UNITED STATES.
No. 23.
Argued October 14-15, 1948.
Decided December 20, 1948.
Louis J. Castellano argued the cause for petitioner. With him on the brief was Daniel McNamara.
Joseph M. Howard argued the cause for the United States. With him on the brief were Solicitor General Perlman and Robert S. Erdahl.
Me. Justice Jackson
delivered the opinion of the Court.
In 1947 petitioner Michelson was convicted of bribing a federal revenue agent. The Government proved a large payment by accused to the agent for the purpose of influencing his official action. The defendant, as a witness on his own behalf, admitted passing the money but claimed it was done in response to the agent’s demands, threats, solicitations, and inducements that amounted to entrapment. It is enough for our purposes to say that determination of the issue turned on whether the jury should believe the agent or the accused.
On direct examination of defendant, his own counsel brought out that, in 1927, he had been convicted of a misdemeanor having to do with trading in counterfeit watch dials. On cross-examination it appeared that in 1930, in executing an application for a license to deal in second-hand jewelry, he answered “No” to the question whether he had theretofore been arrested or summoned for any offense.
Defendant called five witnesses to prove that he enjoyed a good reputation. Two of them testified that their acquaintance with him extended over a period of about thirty years and the others said they had known him at least half that long. A typical examination in chief was as follows:
“Q. Do you know the defendant Michelson?
“A. Yes.
“Q. How long do you know Mr. Michelson?
“A. About 30 years.
“Q. Do you know other people who know him?
“A. Yes.
“Q. Have you had occasion to discuss his reputation for honesty and truthfulness and for being a law-abiding citizen?
“A. It is very good.
“Q. You have talked to others?
“A. Yes.
“Q. And what is his reputation?
“A. Very good.”
These are representative of answers by three witnesses ; two others replied, in substance, that they never had heard anything against Michelson.
On cross-examination, four of the witnesses were asked, in substance, this question: “Did you ever hear that Mr. Michelson on March 4, 1927, was convicted of a violation of the trademark law in New York City in regard to watches?” This referred to the twenty-year-old conviction about which defendant himself had testified on direct examination. Two of them had heard of it and two had not.
To four of these witnesses the prosecution also addressed the question the allowance of which, over defendant’s objection, is claimed to be reversible error:
“Did you ever hear that on October 11, -1920, the defendant, Solomon Michelson, was arrested for receiving stolen goods?”
None of the witnesses appears to have heard of this.
The trial court asked counsel for the prosecution, out of presence of the jury, “Is it a fact according to the best information in your possession, that Michelson was arrested for receiving stolen goods?” Counsel replied that it was, and to support his good faith exhibited a paper record which defendant’s counsel did not challenge.
The judge also on three occasions warned the jury, in terms that are not criticized, of the limited purpose for which this evidence was received.
Defendant-petitioner challenges the right of the prosecution so to cross-examine his character witnesses. The Court of Appeals held that it was permissible. The opinion, however, points out that the practice has been severely criticized and invites us, in one respect, to change the rule. Serious and responsible criticism has been aimed, however, not alone at the detail now questioned by the Court of Appeals but at common-law doctrine on the whole subject of proof of reputation or character. It would not be possible to appraise the usefulness and propriety of this cross-examination without consideration of the unique practice concerning character testimony, of which such cross-examination is a minor part.
Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U. S. 559, but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.
But this line of inquiry firmly denied to the State is opened to the defendant because character is relevant in resolving probabilities of guilt. He may introduce affirmative testimony that the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged. This privilege is sometimes valuable to a defendant for this Court has held that such testimony alone, in some circumstances, may be enough to raise a reasonable doubt of guilt and that in the federal courts a jury in a proper case should be so instructed. Edgington v. United States, 164 U. S. 361.
When the defendant elects to initiate a character inquiry, another anomalous rule comes into play. Not only is he permitted to call witnesses to testify from hearsay, but indeed such a witness is not allowed to base his testimony on anything but hearsay. What commonly is called “character evidence” is only such when “character” is employed as a synonym for “reputation.” The witness may not testify about defendant's specific acts or courses of conduct or his possession of a particular disposition or of benign mental and moral traits; nor can he testify that his own acquaintance, observation, and knowledge of defendant leads to his own independent opinion that defendant possesses a good general or specific character, inconsistent with commission of acts charged. The witness is, however, allowed to summarize what he has heard in the community, although much of it may have been said by persons less qualified to judge than himself. The evidence which the law permits is not as to the personality of defendant but only as to the shadow his daily life has cast in his neighborhood. This has been well described in a different connection as “the slow growth of months and years, the resultant picture of forgotten incidents, passing events, habitual and daily conduct, presumably honest because disinterested, and safer to be trusted because prone to suspect .... It is for that reason that such general repute is permitted to be proven. It sums up a multitude of trivial details. It compacts into the brief phrase of a verdict the teaching of many incidents and the conduct of years. It is the average intelligence drawing its conclusion.” Finch, J., in Badger v. Badger, 88 N. Y. 546, 552.
While courts have recognized logical grounds for criticism of this type of opinion-based-on-hearsay testimony, it is said to be justified by “overwhelming considerations of practical convenience” in avoiding innumerable collateral issues which, if it were attempted to prove character by direct testimony, would complicate and confuse the trial, distract the minds of jurymen and befog the chief issues in the litigation. People v. Van Gaasbeck, 189 N. Y. 408, 419, 82 N. E. 718, 721.
Another paradox in this branch of the law of evidence is that the delicate and responsible task of compacting reputation hearsay into the “brief phrase of a verdict” is one of the few instances in which conclusions are accepted from a witness on a subject in which he is not an expert. However, the witness must qualify to give an opinion by showing such acquaintance with the defendant, the community in which he has lived and the circles in which he has moved, as to speak with authority of the terms in which generally he is regarded. To require affirmative knowledge of the reputation may seem inconsistent with the latitude given to the witness to testify when all he can say of the reputation is that he has “heard nothing against defendant.” This is permitted upon assumption that, if no ill is reported of one, his reputation must be good. But this answer is accepted only from a witness whose knowledge of defendant’s habitat and surroundings is intimate enough so that his failure to hear of any relevant ill repute is an assurance that no ugly rumors were about.
Thus the law extends helpful but illogical options to a defendant. Experience taught a necessity that they be counter-weighted with equally illogical conditions to keep the advantage from becoming an unfair and unreasonable one. The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him. The prosecution may pursue the inquiry with contradictory witnesses to show that damaging rumors, whether or not well-grounded, were afloat— for it is not the man that he is, but the name that he has which is put in issue. Another hazard is that his own witness is subject to cross-examination as to the contents and extent of the hearsay on which he bases his conclusions, and he may be required to disclose rumors and reports that are current even if they do not affect his own conclusion. It may test the sufficiency of his knowledge by asking what stories were circulating concerning events, such as one’s arrest, about which people normally comment and speculate. Thus, while the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans.
To thus digress from evidence as to the offense to hear a contest as to the standing of the accused, at its best opens a tricky line of inquiry as to a shapeless and elusive subject matter. At its worst it opens a veritable Pandora’s box of irresponsible gossip, innuendo and smear. In the frontier phase of our law’s development, calling friends to vouch for defendant’s good character, and its counterpart — calling the rivals and enemies of a witness to impeach him by testifying that his reputation for veracity was so bad that he was unworthy of belief on his oath — were favorite and frequent ways of converting an individual litigation into a community contest and a trial into a spectacle. Growth of urban conditions, where one may never know or hear the name of his next-door neighbor, have tended to limit the use of these techniques and to deprive them of weight with juries. The popularity of both procedures has subsided, but courts of last resort have sought to overcome danger that the true issues will be obscured and confused by investing the trial court with discretion to limit the number of such witnesses and to control cross-examination. Both propriety and abuse of hearsay reputation testimony, on both sides, depend on numerous and subtle considerations difficult to detect or appraise from a cold record, and therefore rarely and only on clear showing of prejudicial abuse of discretion will Courts of Appeals disturb rulings of trial courts on this subject.
Wide discretion is accompanied by heavy responsibility on trial courts to protect the practice from any misuse. The trial judge was scrupulous to so guard it in the case before us. He took pains to ascertain, out of presence of the jury, that the target of the question was an actual event, which would probably result in some comment among acquaintances if not injury to defendant’s reputation. He satisfied himself that counsel was not merely taking a random shot at a reputation imprudently exposed or asking a groundless question to waft an unwarranted innuendo into the jury box.
The question permitted by the trial court, however, involves several features that may be worthy of comment. Its form invited hearsay; it asked about an arrest, not a conviction, and for an offense not closely similar to the one on trial; and it concerned an occurrence many years past.
Since the whole inquiry, as we have pointed out, is calculated to ascertain the general talk of people about defendant, rather than the witness’ own knowledge of him, the form of inquiry, “Have you heard?” has general approval, and “Do you know?” is not allowed.
A character witness may be cross-examined as to an arrest whether or not it culminated in a conviction, according to the overwhelming weight of authority. This rule is sometimes confused with that which prohibits cross-examination to credibility by asking a witness whether he himself has been arrested.
Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a witness.
Arrest without more may nevertheless impair or cloud one’s reputation. False arrest may do that. Even to be acquitted may damage one’s good name if the community receives the verdict with a wink and chooses to remember defendant as one who ought to have been convicted. A conviction, on the other hand, may be accepted as a misfortune or an injustice, and even enhance the standing of one who mends his ways and lives it down. Reputation is the net balance of so many debits and credits that the law does not attach the finality to a conviction, when the issue is reputation, that is given to it when the issue is the credibility of the convict.
The inquiry as to an arrest is permissible also because the prosecution has a right to test the qualifications of the witness to bespeak the community opinion. If one never heard the speculations and rumors in which even one’s friends indulge upon his arrest, the jury may doubt whether he is capable of giving any very reliable conclusions as to his reputation.
In this case the crime inquired about was receiving stolen goods; the trial was for bribery. The Court of Appeals thought this dissimilarity of offenses too great to sustain the inquiry in logic, though conceding that it is authorized by preponderance of authority. It asks us to substitute the Illinois rule which allows inquiry about arrest, but only for very closely similar if not identical charges, in place of the rule more generally adhered to in this country and in England. We think the facts of this case show the proposal to be inexpedient.
The good character which the defendant had sought to establish was broader than the crime charged and included the traits of “honesty and truthfulness” and “being a law-abiding citizen.” Possession of these characteristics would seem as incompatible with offering a bribe to a revenue agent as with receiving stolen goods. The crimes may be unlike, but both alike proceed from the same defects of character which the witnesses said this defendant was reputed not to exhibit. It is not only by comparison with the crime on trial but by comparison with the reputation asserted that a court may judge whether the prior arrest should be made subject of inquiry. By this test the inquiry was permissible. It was proper cross-examination because reports of his arrest for receiving stolen goods, if admitted, would tend to weaken the assertion that he was known as an honest and law-abiding citizen. The cross-examination may take in as much ground as the testimony it is designed to verify. To hold otherwise would give defendant the benefit of testimony that he was honest and law-abiding in reputation when such might not be the fact; the refutation was founded on convictions equally persuasive though not for crimes exactly repeated in the present charge.
The inquiry here concerned an arrest twenty-seven years before the trial. Events a generation old are likely to be lived down and dropped from the present thought and talk of the community and to be absent from the knowledge of younger or more recent acquaintances. The court in its discretion may well exclude inquiry about rumors of an event so remote, unless recent misconduct revived them. But two of these witnesses dated their acquaintance with defendant as commencing thirty years before the trial. Defendant, on direct examination, voluntarily called attention to his conviction twenty years before. While the jury might conclude that a matter so old and indecisive as a 1920 arrest would shed little light on the present reputation and hence propensities of the defendant, we cannot say that, in the context of this evidence and in the absence of objection on this specific ground, its admission was an abuse of discretion.
We do not overlook or minimize the consideration that “the jury almost surely cannot comprehend the judge’s limiting instruction,” which disturbed the Court of Appeals. The refinements of the evidentiary rules on this subject are such that even lawyers and judges, after study and reflection, often are confused, and surely jurors in the hurried and unfamiliar movement of a trial must find them almost unintelligible. However, limiting instructions on this subject are no more difficult to comprehend or apply than those upon various other subjects; for example, instructions that admissions of a co-defendant are to be limited to the question of his guilt and are not to be considered as evidence against other defendants, and instructions as to other problems in the trial of conspiracy charges. A defendant in such a case is powerless to prevent his cause from being irretrievably obscured and confused; but, in cases such as the one before us, the law foreclosed this whole confounding line of „ inquiry, unless defendant thought the net advantage from opening it up would be with him. Given this option, we think defendants in general and this defendant in particular have no valid complaint at the latitude which existing law allows to the prosecution to meet by cross-examination an issue voluntarily tendered by the defense. See Greer v. United States, 245 U. S. 559.
We end, as we began, with the observation that the law regulating the offering and testing of character testimony may merit many criticisms. England and some states have overhauled the practice by statute. But the task of modernizing the long-standing rules on the subject is one of magnitude and difficulty which even those dedicated to law reform do not lightly undertake.
The law of evidence relating to proof of reputation in criminal cases has developed almost entirely at the hands of state courts of last resort, which have such questions frequently before them. This Court, on the other hand, has contributed little to this or to any phase of the law of evidence, for the reason, among others, that it has had extremely rare occasion to decide such issues, as the paucity of citations in this opinion to our own writings attests. It is obvious that a court which can make only infrequent sallies into the field cannot recast the body of case law on this subject in many, many years, even if it were clear what the rules should be.
We concur in the general opinion of courts, textwriters . and the profession that much of this law is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the other. But somehow it has proved a workable even if clumsy system when moderated by discretionary controls in the hands of a wise and strong trial court. To pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice.
The present suggestion is that we adopt for all federal courts a new rule as to cross-examination about prior arrest, adhered to by the courts of only one state and rejected elsewhere. The confusion and error it would engender would seem too heavy a price to pay for an almost imperceptible logical improvement, if any, in a system which is justified, if at all, by accumulated judicial experience rather than abstract logic.
The judgment is
Affirvied.
The first count charged petitioner with bribing in violation of 18 U. S. C. § 91 (now 18 U. S. C. § 201) and the affirmance of his conviction on this count by the Court of Appeals, 165 F. 2d 732, is the judgment here under review. The second count charged “offering” the bribe as a violation of the same statute but his conviction on this count was reversed by the Court of Appeals and is not here involved.
Details appear in the Court of Appeals opinion, 165 F. 2d 732.
In ruling on the objection when the question was first asked, the Court said:
“. . . I instruct the jury that what is happening now is this: the defendant has called character witnesses, and the basis for the evidence given by those character witnesses is the reputation of the defendant in the community, and since the defendant tenders the issue of his reputation the prosecution may ask the witness if she has heard of various incidents in his career. I say to you that regardless of her answer you are not to assume that the incidents, asked about actually took place. All that is happening is that this witness’ standard of opinion of the reputation of the defendant is being tested. Is that clear?”
In overruling the second objection to the question the Court said:
“Again I say to the jury there is no proof that Mr. Michelson was arrested for receiving stolen goods in 1920, there isn’t any such proof. All this witness has been asked is whether he had heard of that. There is nothing before you on that issue. Now would you base your decision on the case fairly in spite of the fact that that question has been asked? You would? All right.”
The charge included the following:
“In connection with the character evidence in the case I permitted a question whether or not the witness knew that in 1920 this defendant had been arrested for receiving stolen goods. I tried to give you the instruction then that that question was permitted only to test the standards of character evidence that these character witnesses seemed to have. There isn’t any proof in the case that could be produced before you legally within the rules of evidence that this defendant was arrested in 1920 for receiving stolen goods, and that fact you are not to hold against him; nor are you to assume what the consequences of that arrest were. You just drive it from your mind so far as he is concerned, and take it into consideration only in weighing the evidence of the character witnesses.”
Footnote 8 to that court’s opinion reads as follows:
“Wigmore, Evidence (3d ed. 1940) § 988, after noting that ‘such inquiries are almost universally admitted,’ not as ‘impeachment by extrinsic testimony of particular acts of misconduct,’ but as means of testing the character ‘witness’ grounds of knowledge,’ continues with these comments: ‘But the serious objection to them is that practically the above distinction — between rumors of such conduct, as affecting reputation, and the fact of it as violating the rule against particular facts — cannot be maintained in the mind of the jury. The rumor of the misconduct, when admitted, goes far, in spite of all theory and of the judge’s charge, towards fixing the misconduct as a fact upon the other person, and thus does three improper things,— (1) it violates the fundamental rule of fairness that prohibits the use of such facts, (2) it gets at them by hearsay only, and not by trustworthy testimony, and (3) it leaves the other person no means of defending himself by denial or explanation, such as he would otherwise have had if the rule had allowed that conduct to be made the subject of an issue. Moreover, these are not occurrences of possibility, but of daily practice. This method of inquiry or cross-examination is frequently resorted to by counsel for the very purpose of injuring by indirection a character which .they are forbidden directly to attack in that way; they rely upon the mere putting of the question (not caring that it is answered negatively) to convey their covert insinuation. The value of the inquiry for testing purposes is often so small and the opportunities of its abuse by underhand ways are so great that the practice may amount to little more than a mere subterfuge, and should be strictly supervised by forbidding it to counsel who do not use it in good faith.’
“Because, as Wigmore says, the jury almost surely cannot comprehend the judge’s limiting instruction, the writer of this opinion wishes that the United States Supreme Court would tell us to follow what appears to be the Illinois rule, i. e., that such questions are improper unless they relate to offenses similar to those for which the defendant is on trial. See Aiken v. People, 183 Ill. 215, 55 N. E. 695; cf. People v. Hannon, 381 Ill. 206, 44 N. E. (2d) 923.”
A judge of long trial and appellate experience has uttered a warning which, in the opinion of the writer, we might well have heeded in determining whether to grant certiorari here:
“. . . evidence of good character is to be used like any other, once it gets before the jury, and the less they are told about the grounds for its admission, or what they shall do with it, the more likely they are to use it sensibly. The subject seems to gather mist which discussion serves only to thicken, and which we can scarcely hope to dissipate by anything further we can add.” L. Hand in Nash v. United States, 54 F. 2d 1006, 1007.
In opening its cyclopedic review of authorities from many jurisdictions, Corpus Juris Secundum summarizes that the rules regulating proof of character “have been criticized as illogical, unscientific, and anomalous, explainable only as archaic survivals of compurgation or of states of legal development when the jury personally knew the facts on which their verdict was based.” 32 C. J. S. Evidence §433.
See Maguire, Evidence: Common Sense and Common Law (1947). Compare pp. 203-209 and pp. 74-76.
Greer v. United States, 245 U. S. 559; 1 Wigmore, Evidence (3d ed., 1940) §57; 1 Wharton, Criminal Evidence (11th ed., 1935) § 330. This was not the earlier rule in English common law and is not now the rule in some civil law countries. 1 Wigmore, Evidence (3d ed., § 1940) § 193.
This would be subject to some qualification, as when a prior crime is an element of the later offense; for example, at a trial for being an habitual criminal. There are also well-established exceptions where evidence as to other transactions or a course of fraudulent conduct is admitted to establish fraudulent intent as an element of the crime charged. See, e. g., Fall v. United States, 60 App. D. C. 124, 49 F. 2d 506, certiorari denied, 283 U. S. 867; Hatem v. United States, 42 F. 2d 40, certiorari denied, 282 U. S. 887; Williamson v. United States, 207 U. S. 425; Allis v. United States, 155 U. S. 117; Wood v. United States, 16 Pet. 342.
As long ago as 1865, Chief Justice Cockburn said, “The truth is, this part of our law is an anomaly. Although, logically speaking, it is quite clear that an antecedent bad character would form quite as reasonable a ground for the presumption and probability of guilt as previous good character lays the foundation of innocence, yet you cannot, on the part of the prosecution, go into evidence as to bad character.” Reg. v. Rowton, 10 Cox’s Criminal Cases 25, 29-30. And see 1 Wigmore, Evidence (3d ed., 1940) § 55.
1 Wigmore, Evidence (3d ed., 1940) § 57.
1 Wigmore, Evidence (3d ed., 1940) §56; Underhill, Criminal Evidence (4th ed., 1935) § 165; 1 Wharton, Criminal Evidence (11th ed., 1935) §§ 330, 336.
5 Wigmore, Evidence (3d ed., 1940) § 1609; Underhill, Criminal Evidence (4th ed., 1935) § 170; 1 Wharton, Criminal Evidence (11th ed., 1935) § 333.
People v. Van Gaasbeck, 189 N. Y. 408, 420, 82 N. E. 718, 722. The law apparently ignores the existence of such human ciphers as Kipling’s Tomlinson, of whom no ill is reported but no good can be recalled. They win seats with the righteous for character evidence purposes, however hard their lot in literature.
Id,.; 5 Wigmore, Evidence (3d ed., 1940) §1614; Underhill, Criminal Evidence (4th ed., 1935) § 171; 1 Wharton, Criminal Evidence (11th ed., 1935) § 334.
1 Wigmore, Evidence (3d ed., 1940) §58; Underhill, Criminal Evidence (4th ed., 1935) § 167; 1 Wharton, Criminal Evidence (11th ed., 1935) § 330.
A classic example in the books is a character witness in a trial for murder. She testified she grew up with defendant, knew his reputation for peace and quiet, and that it was good. On cross-examination she was asked if she had heard that the defendant had shot anybody and, if so, how many. She answered, “three or four,” and gave the names of two but could not recall the names of the others. She still insisted, however, that he was of “good character.” The jury seems to have valued her information more highly than her judgment, and on appeal from conviction the cross-examination was held proper. People v. Laudiero, 192 N. Y. 304, 309, 85 N. E. 132. See also People v. Elliott, 163 N. Y. 11, 57 N. E. 103.
See, e. g., Mannix v. United States, 140 F. 2d 250. It has been held that the question may not be hypothetical nor assume unproven facts and ask if they would affect rhe conclusion, Little v. United States, 93 F. 2d 401; Pittman v. United States, 42 F. 2d 793; Filippelli v. United States, 6 F. 2d 121; and that it may not be so asked as to detail evidence or circumstances of a crime of which defendant was accused. People v. Marendi, 213 N. Y. 600, 107 N. E. 1058. It has been held error to use the question to get before the jury a particular derogatory newspaper article. Sloan v. United, States, 31 F. 2d 902. The proof has been confined to general reputation and that among a limited group such as fellow employees in a particular building held inadmissible. Williams v. United States, 168 U. S. 382.
This procedure was recommended by Wigmore. But analysis of his innovation emphasizes the way in which law on this subject has evolved from pragmatic considerations rather than from theoretical consistency. The relevant information that it is permissible to lay before the jury is talk or conversation about the defendant’s being arrested. That is admissible whether or not an actual arrest had taken place; it might even be more significant of repute if his neighbors were ready to arrest him in rumor when the authorities were not in fact. But before this relevant and proper inquiry can be made, counsel must demonstrate privately to the court an irrelevant and possibly unprovable fact — the reality of arrest. From this permissible inquiry about reports of arrest, the jury is pretty certain to infer that defendant had in fact been arrested and to draw its own conclusions as to character from that fact. The Wigmore suggestion thus limits legally relevant inquiries to those based on legally irrelevant facts in order that the legally irrelevant conclusion which the jury probably will draw from the relevant questions will not be based on unsupported or untrue innuendo. It illustrates Judge Hand’s suggestion that the system may work best when explained least. Yet, despite its theoretical paradoxes and deficiencies, we approve the procedure as calculated in practice to hold the inquiry within decent bounds.
See Stewart v. United States, 70 App. D. C. 101, 104 F. 2d 234; Little v. United States, 93 F. 2d 401; Filippelli v. United States, 6 F. 2d 121.
See Mannix v. United States, 140 F. 2d 250; Josey v. United States, 77 U. S. App. D. C. 321, 135 F. 2d 809; Spalitto v. United States, 39 F. 2d 782, and authorities there cited.
The Supreme Court of Illinois, in considering its own rule which we are urged to adopt, recognized that “the rule adhered to in this State is not consistent with the great weight of authority in this country and in England.” People v. Hannon, 381 Ill. 206, 209, 44 N. E. 2d 923. Authorities in all states are collected in 71 A. L. R. 1504.
Criminal Evidence Act, 61 & 62 Vict., c. 36. See also 51 L. Q. Rev. 443, for discussion of right to cross-examine about prior arrests. For review of English and state legislation, see 1 Wigmore, Evidence (3d ed., 1940) § 194, et seq. The Pennsylvania statute (Act of March 15, 1911, P. L. 20, § 1) discussed by Wigmore has been amended (Act of July 3, 1947, P. L. 1239, § 1, 19 PS §711). The current statute and Pennsylvania practice were considered recently by the Superior Court of that state. Commonwealth v. Hurt, 163 Pa. Super. 232, 60 A. 2d 828.
The American Law Institute, in promulgating its “Model Code of Evidence,” includes the comment, “Character, wherever used in these Rules, means disposition not reputation. It denotes what a person is, not what he is reputed to be. No rules are laid down as to proof of reputation, when reputation is a fact to be proved. When reputation is a material matter, it is provable in the same manner as is any other disputed fact.” Rule 304. The latter sentence may seem an oversimplification in view of the decisions we have reviewed.
See note 21.
It must not be overlooked that abuse of cross-examination to test credibility carries its own corrective. Authorities on practice caution the bar of the imprudence as well as the unprofessional nature of attacks on witnesses or defendants which are likely to be resented by the jury. Wellman, Art of Cross-Examination (1927) p. 167, et seq.
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_genapel1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES v. BERTELSEN & PETERSEN ENGINEERING CO.
No. 3243.
Circuit Court of Appeals, First Circuit.
July 13, 1938.
For former opinion, see 95 F.2d 867.
Loring W. Post, Sp. Asst, to Atty. Gen. (James W. Morris, Asst. Atty. Gen., Sewall Key, J. Louis Monarch, and F. A. Michels, Sp. Assts. to Atty. Gen., and Francis J. W. Ford, U. S. Atty., and Arthur L. Murray, Sp. Asst, to U. S. Atty., both of Boston, Mass., on the brief), for appellant.
O. Walker Taylor and Ray Henry, both of Boston, Mass., for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
This is a petition for a rehearing in the above entitled cause. The case was heard a second time by this court on appeal from the District Court of Massachusetts, and the judgment of the District Court was affirmed.
The issues raised on this appeal by the assignments of error were whether a deficiency assessment of $34,555.68 made by the Commissioner of Internal Revenue for the year 1918 was made within the statutory period of limitation, as extended by certain waivers filed by the taxpayer. The government also for the first time raised the question in its assignments of error as to whether the District Court had jurisdiction of the cause, relying on Sec. 24 (5, 20) of the Judicial Code as amended, 28 U.S.C.A. § 41 (5,20).
This court held that a fifth waiver filed in December, 1925, which purported to extend the time for the assessment of the 1918 tax to December 31, 1926, was ineffective, since it was not assented to by the Commissioner in writing, and that the assessment of the deficiency tax for 1918 on July 27, 1926, was therefore void.
The petition for rehearing was granted on the sole question of whether the District Court had jurisdiction to hear and decide the case.
Some confusion has arisen in the consideration of the case as to whether the taxpayer’s petition was grounded on the Commissioner’s certificate of overassessment in 1917 as an account stated, or on a balance due on an allowed claim. In either case it is urged by the government that the Court of Claims has sole jurisdiction of the cause. Since this is a petition for rehearing, the case is to be heard anew on the question to which the rehearing is limited. If counsel for plaintiff in their brief, or this Court in its opinion, used language which may be construed as indicating that the taxpayer’s petition was based solely on the Commissioner’s certificate of overpayment of the 1917 tax, either as an account stated or as an allowed claim, we think, on rehearing on the question of the jurisdiction of the District Court to hear and determine the case, that the facts on which jurisdiction is based are opened for further consideration.
The certificate of overassessment issued by the Commissioner on July 27, 1926, disclosed an overpayment by the taxpayer of the 1917 tax of $91,570.34, of which the Commissioner ordered refunded to the taxpayer approximately $55,000, and on July 27, 1926, credited $34,555.68 to a deficiency tax for 1918.
It cannot be said that the certificate of overassessment constituted an account stated between the government and the taxpayer, since the taxpayer refused to assent to the application of any part of the overpayment to a deficiency tax for 1918. To constitute an account stated there must be an agreement as to liability and the amount due. Goodrich, Adm’r, v. Coffin, 83 Me. 324, 22 A. 217. That the taxpayer’s petition was not based on an allowance of an overpayment for 1917, and an implied promise by the government to refund, is equally clear, since the taxpayer refused to assent to the application of $34,555.68 to' a -deficiency tax of 1918. The application by the Commissioner on July 27, 1926, of a part of the overpayment for 1917 to a deficiency tax for 1918, against the protest of the taxpayer, constituted a disallowance of so much of the petitioner’s' original claim for refund.
On November 25, 1927, the taxpayer wrote the Commissioner that, inasmuch as its original claim for refund for 1917 as to the part now sued for had been rejected within two years, it was filing a refund claim for that part of the 1917 overpayment erroneously applied to a deficiency tax for 1918 as a protective measure; and on November 28, 1927, the taxpayer renewed its claim for a refund of $34,555.68 as an overpayment of its 1917 tax by filing with the Commissioner of Internal Revenue a specific claim for the amount under Sec. 3226 R.S. as amended by Sec. 1113 of the Revenue Act of 1926, 44 Stat. 116, to which claim the suit of the taxpayer relates, the receipt of which claim was acknowledged by the Commissioner.
On February 6, 1928, the Commissioner of Internal Revenue notified the taxpayer by letter that its claim of November 28, 1927, had been examined and would be rejected, which rejection would appear on the next schedule approved by the Commissioner.
The chairman of the Special Advisory Committee of the Bureau of Internal Revenue in a memorandum furnished the taxpayer stated relative to its alternative claims for 1917 and 1918 filed November 28, 1927, that: “The claims were considered on 'the merits and in a Bureau letter dated February 6, 1928, they were proposed for rejection.” They were officially rejected on February 28, 1928.
Within two years from the final disallowance of said claims on February 28, 1928, the taxpayer on September 19, 1929, filed a petition in the District Court for the District of Massachusetts to recover the sum of $34,555.68 with interest, which it alleged had been erroneously disallowed.
In the case of Jones v. United States, 5 F.Supp. 146, 152, the Court of Claims held:
“That a reconsideration of a refund claim on the merits constitutes a reopening of the claim is no longer open to doubt. Mobile Drug Co. v. United States (D.C.) 39 F.(2d) 940, and McKesson & Robbins, Inc., v. Edwards (C.C.A.) 57 F.(2d) 147. These cases announce the rule that when the Commissioner, upon application made by a taxpayer within the time in which suit could be instituted on a disallowed claim, enters into a reconsideration of the merits of the claim and later makes a decision thereon rejecting the claim, or adheres to his former decision rejecting it, his decision for the purpose of the statute of limitations is in abeyance until he has reached and announced his final decision, and the taxpayer, under section 3226 of the Revised Statutes, as amended, 26 U.S. C.A. Sec. 156 [now 26 U.S.C.A. §§ 1672-1673], has two years thereafter in which to institute suit. * * * There must be an actual reconsideration of the case, and the final decision must be upon the merits of the claim. Ford Motor Co. v. United States (Ct.Cl.) 3 F.Supp. 423; Hickman v. United States (D.C.) 47 F.(2d) 328. We think this case' clearly illustrates what constitutes the reconsideration of a claim for refund. It meets in every respect the requirement that the claim must be reconsidered and decided upon its merits.”
In the case of Southwestern Oil & Gas Company v. United States, D.C., 29 F.2d 404, 406, certiorari denied 280 U.S. 601, 50 S.Ct. 82, 74 L.Ed. 646, the Court said:
“The plaintiff * * * further contends that the date of the Commissioner’s final rejection of its claim was not April 28, 1925, but August 31, 1927, as the Commissioner, pursuant to plaintiff’s request made prior to the expiration of two years following the original rejection, had reopened the judgment and reconsidered the claim. We find the last of these contentions to be sustained by the findings of fact, and that the claim was actually reopened and reconsidered, and finally decided on August 31, 1927, and consequently plaintiff’s action is not barred by section 3226, R.S., as re-enacted by section 1113 of the Revenue,Act of 1926, and section 281 (a) and (b) of the Revenue Act of 1924 * $ *»
In Pacific Mills v. Nichols, 1 Cir., 72 F.2d 103, 107, the Court said:
“In the present case, even if the Commissioner should be held to have decided every claim under the taxpayer’s original petition, on March 26, 1927, when the second claim was filed, two years had not elapsed since the rejection of the first claim; it was still open to the plaintiff to sue on the denial of the first claim and to the Commissioner to reconsider his decision on the first claim and permit it to be amended and reheard.”
Also see Pratt & Whitney Co. v. United States, Ct.Cl., 6 F.Supp. 574; United States v. Memphis Cotton Oil Co., 288 U.S. 62, 66, 53 S.Ct. 278, 279, 77 L.Ed. 619.
The government having admitted all the jurisdictional facts except those authorizing the District Court to hear such a case, the facts appearing in the record demonstrate that the suit was one which could have been brought against a Collector, if living, but who is now dead or out of office.
We think the contention of the taxpayer must be sustained, viz: that the filing of the second claim for refund on November 28, 1927, and its consideration on its merits was a reopening of the original claim of refund which had been timely filed under Sec. 3226 R.'S. (amended by Sec. 1113 of the 1926 Revenue Act, 44 Stat. 116); Jones v. United States, supra, page 152; Southwestern Oil & Gas Company v. United States, supra, page 406; that the Commissioner accepted the claim as such without any objection as to its timeliness or form and considered it on its merits and officially denied it on February 28, 1928, and the suit of the taxpayer was filed within two years, or on September 19, 1929.
The case of Lowe Bros. Co. v. United States, 6 Cir., 92 F.2d 905, affirmed by the Supreme Court on May 16, 1938, 58 S.Ct. 896, 82 L.Ed.-, does not militate against the taxpayer’s right of recovery in this case, since 'the tax for the year in question in that case was not collected by a collector who was dead or out of office, as the 1917 tax had been in this case, but was in effect collected by the Commissioner of Internal Revenue by applying an overpayment as a credit on taxes for a prior year, which the Commissioner attempted to do in this case for an alleged deficiency tax for 1918.
Upon a reconsideration of the facts and the briefs on rehearing, we think this action was brought to recover that part of a claim for refund of the 1917 overpayment which had been disallowed by improperly applying it to an invalid assessment of a deficiency tax for 1918.
On rehearing the judgment of the District Court will stand affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_counsel1
|
D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
MIDDLE SOUTH ENERGY, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Arkansas Public Service Commission, Cities of Conway and West Memphis, Arkansas, Cities of Benton, et al., City of New Orleans, Louisiana, Louisiana Public Service Commission, Mississippi Public Service Commission, International Paper Company, Intervenors. MIDDLE SOUTH ENERGY, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Tennessee Gas Pipeline Company, Cities of Conway and West Memphis, Arkansas, International Paper Company, Intervenors. MIDDLE SOUTH ENERGY, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Arkansas Public Service Commission, Cities of Conway and West Memphis, Arkansas, Occidental Chemical Corporation, Louisiana Public Service Commission, International Paper Company, Intervenors. MIDDLE SOUTH ENERGY, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Louisiana Public Service Commission, International Paper Company, Intervenors.
Nos. 83-1632, 83-1772, 83-1810 and 83-1811.
United States Court of Appeals, District of Columbia Circuit.
Argued March 8, 1984.
Decided Nov. 6, 1984.
Ginsburg, Circuit Judge, dissented in part with opinion.
Richard M. Merriman, Washington, D.C., with whom Floyd L. Norton, IV, and Stephen L. Huntoon, Washington, D.C., were on the brief, for petitioner.
Arlene Pianko Groner, Atty., F.E.R.C., Washington, D.C., with whom Stephen A. Melton, Acting Gen. Counsel, Barbara J. Weller, Deputy Sol. and A. Karen Hill, Attorney, F.E.R.C., Washington, D.C., were on the brief, for respondent, Joanne Leveque, Attorney, F.E.R.C., Washington, D.C., also entered an appearance for respondent.
Glen L. Ortman, Washington, D.C., with whom Clinton A. Vince, Gregg D. Ottinger and Paul E. Nordstrom, Washington, D.C., were on the brief, for City of New Orleans, Louisiana, intervenor in No. 83-1632.
Michael R. Fontham and William E. Brown, New Orleans, La., were on the brief for Louisiana Public Service Com’n, intervenor in Nos. 83-1632, 83-1810 and 83-1811.
William F. Cockrell, Jr., Washington, D.C., and Hiram C. Eastland, Jackson, Miss., were on the brief for Mississippi Public Service Com’n, intervenor in No. 83-1632.
Earle H. O’Donnell, Washington, D.C., was on the brief for Occidental Chemical Corp., intervenor in No. 83-1810.
Charles F. Wheatley, Jr. and Don Charles Uthus, Washington, D.C., entered appearances for Cities of Conway and West Memphis, Arkansas, intervenor in Nos. 83-1632, 83-1772 and 83-1810.
Terence J. Collins, Houston, Tex., entered an appearance for Tennessee Gas Pipeline Co., intervenor in No. 83-1772.
James D. Pembroke, Washington, D.C., entered an appearance for Arkansas Public Service Com’n, intervenor in Nos. 83-1632 and 83-1810.
Rigdon H. Boykin, New York City, entered an appearance for Intern. Paper Co., intervenor in Nos. 83-1632, 83-1772, 83-1810 and 83-1811.
Zachary D. Wilson, North Little Rock, Ark., entered an appearance for Cities of Benton, et al., intervenors in No. 83-1632.
Before GINSBURG, BORK, and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge BORK.
Opinion concurring in part and dissenting in part filed by Circuit Judge Ginsburg.
BORK, Circuit Judge:
Middle South Energy, Inc. appeals the Federal Energy Regulatory Commission’s orders suspending Middle South Energy’s initial rate schedule for the sale of electricity. Middle South also appeals the Commission’s orders announcing that the Commission now interprets its suspension authority under the Federal Power Act and the Natural Gas Act to include authority to suspend initial rates. Petitioner alleges that the statutory language, legislative history, previous Commission interpretation and judicial assumptions all weigh strongly against FERC’s new view that it has the authority to suspend initial rate filings. FERC, on the other hand, maintains that the recent Supreme Court decision in Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 98 S.Ct. 2053, 56 L.Ed.2d 591 (1978), construing parallel rate provisions in the Interstate Commerce Act, shows that the Commission’s previous interpretation of its authority was unduly limited. Our analysis compels the conclusion that FERC lacks the authority to suspend initial rate filings.
I.
A.
The Federal Energy Regulatory Commission regulates rates for wholesale interstate sales of electricity pursuant to sections 205 and 206 of the Federal Power Act, 16 U.S.C. §§ 824d and 824e (1982). Section 205(a) stipulates that all rates for jurisdictional sales of electricity shall be reasonable and just. Section 205(b) prohibits undue preferences and discrimination among customers. Section 205(c) mandates the filing of all rate schedules with the Commission. Section 205(d) requires that a utility give sixty days’ notice to the Commission and the public by filing the changed schedule. The provision at issue here is section 205(e). It states that “[wjhenever any such new schedule is filed,” the Commission may set the proposal for hearing, may suspend the rates for up to five months, and may require refunds of any rates collected thereafter that the Commission ultimately finds unjust and unreasonable. Finally, according to section 206, the Commission may, sua sponte, investigate any jurisdictional rate that is in effect and, if it finds the rate unjust and unreasonable, establish a new rate for prospective effect only.
Traditionally, the Commission has interpreted its authority to suspend rates and require refunds under section 205(e) as limited to changes in rates filed under section 205(d). In 1978 the Supreme Court held that parallel rate provisions in the Interstate Commerce Act (“ICA”) authorized the Interstate Commerce Commission to suspend rates and require refunds of initial rates filed by oil pipelines. See Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 98 S.Ct. 2053, 56 L.Ed.2d 591 (1978). In the course of adjudicating the present controversy, the Commission has decided that its previous interpretation of its authority under section 205(e) is wrong, and it now claims suspension and refund powers over initial as well as changed rates.
B.
Middle South Utilities, Inc. is a registered public utility holding company consisting of four operating companies: Arkansas Power & Light Company, Louisiana Power & Light Company, Mississippi Power & Light Company, and New Orleans Public Service, Inc. In 1974, Middle South Utilities created a wholly owned subsidiary, Middle South Energy, Inc. (“MSE”), to develop the Grand Gulf Nuclear Electric Station Project. On June 18, 1982, MSE submitted a rate schedule for filing to FERC. It described this as an initial rate schedule. The Commission accepted this rate schedule for filing but decided that the submission should be treated as a change in rate rather than an initial rate filing. The Commission found:
Although MSE has been interposed as a separate company, the transaction is wholly intra-corporate in nature with MSE acting for the sole purpose of operating a facility which would otherwise be controlled, like other system resources, by another MSU operating company; the total output of the facility available to MSE will, in turn, be sold to MSU subsidiaries.
Record on appeal (“R.”) at 42. For these reasons, the Commission decided to construe MSE’s rate filing “as a joint corporate submittal modifying or affecting the existing coordination arrangements among the MSU affiliates.” Id. With respect to the substance of the rate schedule, the Commission found that the rates may be “unjust, unreasonable, unduly discriminatory or preferential,, or otherwise unlawful.” Id. The Commission therefore suspended the operation of the proposed agreement. It authorized the agreement to take effect subject to refund when service began. The Commission further ordered that a public hearing be held on the subject of the justness and reasonableness of MSE’s rates, pursuant to section 205 of the FPA. R. at 43.
MSE then sought rehearing of FERC’s order on the ground that the agreement should be treated as an initial rate filing rather than a change in rate. After granting rehearing on May 24, 1983, the Commission concluded: “it is not appropriate to treat an initial rate of a new corporate entity as a change in rate simply because of its affiliated status.” R. at 91. Nevertheless, the Commission stated that “the order of August 25, 1982, would remain unchanged with respect to MSE’s rates.” Id. at 98. As the new basis for its order the Commission presented its conclusion that, contrary to its previous interpretation, it did have authority under section 205 of the FPA to suspend initial rates. Id.
MSE petitioned for rehearing of this order on two grounds: (1) that the Commission lacked the authority to suspend or order refunds of initial rates, R. at 99-133; (2) that even if the Commission’s interpretation of its authority were correct, it had violated its own rules and the Administrative Procedure Act by exercising that authority in MSE’s case. Id. at 133-46. In denying rehearing on August 1, 1983, the Commission relied on the Supreme Court’s analysis of the ICA in the Trans Alaska Pipeline Rate Cases. Regarding MSE’s procedural allegations, the Commission stated that formal rulemaking is not required to effect a change in the Commission’s interpretation of its own statutory authority.
On the same day that it issued the order on rehearing in the Middle South rate case, the Commission issued Order No. 303, amending the interpretation of its suspension authority set forth in its regulations under the FPA and under the parallel Natural Gas Act, 15 U.S.C. §§ 717-717w (1982). 18 C.F.R. §§ 2.4(d), 2.52 (1983). R. at 161-77. The Commission stated that it was amending its published interpretations to reflect its new construction of its authority to suspend initial rate schedules, establish interim rates during the suspension period, and establish contingent refund obligations under both the Natural Gas Act and the Federal Power Act. R. at 162. MSE filed for rehearing of the new interpretive rule under the FPA, and Tennessee Gas Pipeline Company filed for rehearing of the new interpretive rule under the Natural Gas Act. Id. at 194-239, 181-93. On August 1, 1983, the Commission denied rehearing. In this court, Middle South seeks review both of the Commission’s order suspending its rates and of the Commission’s new interpretive rule.
II.
The Commission asserts that the Supreme Court decision in Trans Alaska Pipeline Rate Cases (“TAPS"), 436 U.S. 631, 98 S.Ct. 2053, 56 L.Ed.2d 591 (1978), justifies it in exercising the power to suspend initial rates. In TAPS, the Supreme Court held that section 15(7) of the ICA authorized the ICC to suspend initial tariff schedules. Section 15(7) of the ICA, 49 U.S.C. § 15(7) (1976), states:
Whenever there shall be filed with the Commission any schedule stating a new individual or joint rate,... the Commission shall have... authority... to enter upon a hearing concerning the lawfulness of such rate,... and pending such hearing and the decision thereon the Commission,... may from time to time suspend the operation of such schedule and defer the use of such rate____ If the proceeding has not been concluded and an order made within the period of suspension, the proposed change of rate... shall go into effect at the end of such period; but in case of a proposed increased rate..., the Commission may by order require... refund, with interest... of such increased rates or charges as by its decision shall be found not justified ____
In reaching its holding in TAPS, the Supreme Court emphasized the language of section 15(7), in particular, the phrase, “any schedule stating a new individual or joint rate.” 436 U.S. at 642, 98 S.Ct. at 2060 (emphasis added). The Court rejected the argument that “new,” as used in section 15(7) of the ICA, refers only to changed or increased rates. The Court reasoned that the literal language of the statute, which embraces “any schedule stating a new... rate,” presumptively included initial rates: “[i]t is hard to imagine rates any more “new” than those filed for TAPS, a service which has never before been offered.” 436 U.S. at 642, 98 S.Ct. at 2060. Thus, the burden was on the petitioning utilities to show that “ ‘new’ does not really mean ‘new,’ but refers only to increased or changed rates____” Id.
The Court recognized that it had some leeway in interpreting the words of a statute to avoid results that would frustrate the purpose of the statute, 436 U.S. at 643, 98 S.Ct. at 2061, which, as the Court had earlier noted, was to ensure that charges for transportation should be reasonable and just. See id. at 639, 98 S.Ct. at 2059. However, the Court concluded that to read “any schedule stating a new... rate” as including only changed rates would impair the statutory purpose rather than promoting it: “a literal reading of the word ‘new’ in § 15(7) is necessary to curb mischief flowing from unchecked initial rates, which is in every way identical to that flowing from unchecked changes in rates...Id. at 631, 98 S.Ct. at 2053.
The equivalence of harms the TAPS Court posited is simply that an unreasonable initial rate is just as harmful as an unreasonable changed rate. But that was not the sole basis for this portion of the Court’s analysis. The ICC’s power to set reasonable rates is prospective — it applies only after a rate becomes effective. 436 U.S. at 640, 98 S.Ct. at 2059. Consequently, absent suspension power over initial rates, the only check on the harmful effects those rates, if unreasonable, would have prior to prospective ICC rate-making would be the reparations remedy. See id. But the reparations remedy, as Congress itself had determined when it gave the ICC suspension powers in 1910, was ineffective because it was a form of private enforcement. See id. Reparations would be ordered only if injured shippers complained to the ICC, and all too often shippers would not complain because they could pass the unreasonable rates on to consumers. Id. Moreover, “in the absence of suspension authority, unreasonable initial rates — both, generally and in these cases — like unreasonable increases in existing rates, will almost certainly be passed along to ‘a prior producer or... to the ultimate consumer.’ ” Id. at 644, 98 S.Ct. at 2061 (citation omitted). Thus, even if the shipper sought reparations the harm to consumers would go unremedied. It was recognition of precisely this problem that had prompted Congress to enact the Mann-Elkins Act, which first gave suspension powers to the ICC.
Having determined that both the literal meaning and the history of Congress’ efforts to achieve its central statutory purpose supported reading section 15(7) of the ICA as conferring suspension power over initial rates, the TAPS Court was prepared to reach a contrary result only if “unequivocal statements in the legislative history of the Act would support any limitation on the suspension power.” 436 U.S. at 645, 98 S.Ct. at 2062. Finding that there were no such unequivocal statements, the Court held that the ICC has power to suspend initial rates. Id. at 646, 98 S.Ct. at 2062.
The TAPS decision, then, rests on two principal grounds: first, the literal meaning of the words of the statute. Second, the risk that a non-literal reading would lead to the kind of harm that Congress had concluded, based on experience with the regulation of transportation, could not effectively be prevented except through the suspension power. Only the second of these grounds is present in this case, and then only in an attenuated fashion.
We find respondent’s argument that the decision in TAPS is controlling here unpersuasive, ab initio, because whereas the relevant language in the ICA reads simply “any schedule stating a new... rate,” the parallel language in the Federal Power Act reads “any such new schedule.” 16 U.S.C. § 824d(e) (1982) (emphasis added). Prima facie, the use of the iterative adjective “such” indicates that this language is understandable only by reference to the sole prior reference in section 205 to “new schedule:” this reference is contained in section 205(d), which immediately precedes section 205(e) and which, it is undisputed, applies only to changed rates. Section 205(d), which requires notice to the Commission before rate changes go into effect, talks about “new schedules stating plainly the change or changes to be made in the schedule or schedules then in force.” The straightforward conclusion is that the phrase “such new schedules” in section 205(e) refers only to the schedules in section 205(d).
In its May 24,1983 order the Commission ruled that “such new schedule” refers back to section 205(c), which does not employ the expression “new schedules,” but instead speaks of “all rates and charges.” The Commission argues, and Judge Ginsburg agrees, that “such new schedules” can be read as referring back to “all rates and charges,” with the intended meaning being that existing rates cannot be suspended, but new rates — changed or initial — can. While this reading is not impossible, we think it is strained. It asks us to conclude that when Congress used “new schedules” in section 205(d) it meant schedules filed pursuant to a change in rates, but that when, immediately afterwards, it referred to “any such new schedule” it meant to give a different and broader meaning to the word “new”. Moreover, the use of “such” is puzzling on this reading; had Congress simply said “any new schedule” the Commission’s reading would be more plausible. The only reading that gives effect to each of the words Congress employed in section 205(e) is that the suspension power applies only to changed rates.
This interpretation is also supported by some language used later in section 205(e): “If the proceeding has not been concluded and an order made at the expiration of such five months, the proposed change of rate... shall go into effect at the end of-such period____” As the petitioner points out, if “change” is, used here in its common-sense meaning, then initial rate schedules are excluded.
In addition to the plain language of the statute, the most nearly contemporaneous construction of section 205 by the Commission — and the Commission drafted the statute — corroborates the Commission’s lack of authority to suspend initial rates. Courts regard with particular respect the contemporaneous construction of a statute by those initially charged with its enforcement. See, e.g., TAPS, 436 U.S. at 648 n. 26, 98 S.Ct. at 2063 n. 26; Chemehueir Tribe of Indians v. FPC, 420 U.S. 395, 409-10, 95 S.Ct. 1066, 1075-76, 43 L.Ed.2d 279 (1975). Here, where the agency was involved in developing the provisions, this principle applies with even greater force. See Miller v. Youakim, 440 U.S. 125, 144, 99 S.Ct. 957, 968, 59 L.Ed.2d 194 (1979). It is therefore highly significant that on May 29, 1945, in its first comprehensive discussion of the suspension power, the Federal Power Commission approved and adopted, inter alia, the following interpretation of its powers under section 205 of the Federal Power Act and section 4 of the Natural Gas Act: “An initial rate cannot be suspended.” 18 C.F.R. §§ 2.4, 2.52 (1983). While this interpretation is not, strictly speaking, contemporaneous, the Commission concedes that it has steadfastly adhered to this reading of its suspension powers since 1945, and has not asserted that a different understanding informed its administration of the statute prior to that time. We assign considerable importance to this longstanding interpretation of the statute in accordance with its literal language.
Besides the plain language of the statute and forty-five years of interpretation by the Commission and the courts, some additional support for petitioner’s view of FERC’s power to suspend initial rates comes from the legislative history of the Act. The FPC’s analysis of the legislation it wrote, which it submitted to the House and Senate committees, and which, after some revisions irrelevant here, became the FPA, states:
[The precursor to section 205] requires each public utility to file with the Commission schedules showing the rates, charges, and classifications which are subject to Commission regulation in force and effect, and no charge [sic ] can be made therein except after 30 days’ notice to the Commission and to the public. The Commission is given authority, either upon complaint or upon its own initiative without complaint, to suspend the effective date of the change in rates for a period not exceeding 5 months beyond the time when the change would otherwise go into effect, for the purpose of investigating the reasonableness of charge. If the investigation cannot be completed with [sic] the 5 months’ period, the new rate may go into effect, but in case the change results in an increase in rates the Commission may require the utility to make refunds if the increase is not approved.
Public Utility Holding Companies: Hearings on H.R. 5423 Before the House Comm, on Interstate and Foreign Commerce, 74th Cong., 1st Sess. 33-34 (1935) (emphasis added); Public Utility Holding Company Act of 1935: Hearings on S.1725 Before the Senate Comm, on Interstate Commerce, 74th Cong., 1st Sess. 41-42 (1935) (emphasis added). This authoritative summary conspicuously omits any mention of a suspension power over initial rates, although it notes that all rates, including initial rates, must be filed with the Commission. This legislative history confirms that section 205 does not give the Commission power to suspend initial rate filings.
The literal language of section 205 strongly suggests that the Commission has no power to suspend initial, rates. The legislative history, though not conclusive, is to the same effect. The Commission, which drafted the statute, early interpreted section 205 in this way, and adhered to that interpretation for almost forty years. Together, these considerations make this case wholly distinguishable from TAPS. The only feature this case shares with TAPS is that the absence of suspension power creates a gap in the agency’s ability to ensure that initial rates conform, in all cases and at all times, to the statutory command that rates be just and reasonable. The Commission urges us to give dispositive weight to this consideration. We decline to do so, because we are completely unpersuaded that the TAPS Court’s discussion of the parallel statutory command of the ICA can be read so sweepingly. We cannot legislate to remedy the gap, however troublesome, that the language, legislative history, and the Commission’s longstanding interpretation establish as a part of the statutory scheme enacted by Congress. Nor do we think the TAPS Court was moved primarily by the desirability of filling the gap.
As earlier mentioned, the TAPS Court emphasized that Congress had decided that experience with the ICA demonstrated the necessity of suspension powers in order to remedy the perceived deficiency of the reparations remedy. The reparations remedy was equally available, and viewed as equally ineffective, whether the rates were initial or changed. Accordingly, the Court inferred that Congress must have intended to extend the suspension power to embrace initial as well as changed rates, and it relied on this inference to buttress its reading of the statute’s literal language.
Thus, the TAPS Court did not engage in legislative gap-filling. Rather, the Court drew an inference, supported by the legislative history and by the statute’s literal language, from Congress’ general intent to its likely intent as to a specific aspect of the ICA. Here, where in contrast the legislative history, the literal language, and the Commission’s established interpretation all point to a limitation on Congress’ “general intent” to ensure that all rates be just and reasonable, that inference is highly implausible. Were we convinced that catastrophe would ensue, we might nonetheless be forced to decide that the relief the Commission requests is for Congress, not this court, to grant. But we cannot agree that catastrophe will ensue.
The Commission’s concern is that “the Commission cannot remedy an illegal initial rate until it can complete a full ratemaking hearing under section 206, and then only prospectively.” Consequently, the Commission fears that utilities will be able to charge unreasonable initial rates with impunity, and will retain the unlawful proceeds even after the Commission has ordered them to cease charging the unlawful rate. Brief for Respondent FERC at 26. We recognize that this possibility exists, and that it is somewhat aggravated by the fact that, unlike the ICC, the Commission cannot order reparations to ratepayers. See City of Newark v. Delmarva Power & Light Co., 467 F.Supp. 763, 770, 771 (D.Del.1979); Carolina Power & Light Co., 52 F.P.C. 991, 992 (1974). However, the Commission has not claimed that ease of entry into the markets it regulates — either of buyers or sellers — makes this risk significant, as compared to the vast sectors of those markets in which initial rates were long since established. This omission suggests to us that the “gap” in the Commission’s powers is smaller in fact than it appears in argument. Moreover, the Commission has until now taken quite a broad view of its powers to characterize rates that are arguably initial as changed, where, as here, “the rates essentially allocated the output of a new generating unit among the existing jurisdictional companies that together own the facility ____” Brief for Respondent FERC at 6. This court has upheld the Commission’s broad view of what constitutes a changed rate, stating that “[t]his is precisely the type of question we must leave to the technical expertise of the Commission; we will not substitute our judgment unless the Commission’s judgment is unreasonable and cannot be rationally reconciled with the terms of the Act.” Florida Power & Light Co. v. FERC, 617 F.2d 809, 815 (D.C.Cir.1980). Again, this suggests that many incremental changes in the types of services utilities offer their established customers will fall within the ambit of the Commission’s suspension and refund powers. Then, too, the Commission’s ability to grant prospective relief against unreasonable initial rates constrains the duration over which they will remain unreasonable, though it does not eliminate them altogether. Finally, even in those instances where a rate schedule is incontrovertibly new and therefore outside the Commission’s suspension powers, we note that market forces continue to provide some constraints on the extent to which those rates will be unjust or unreasonable. Congress, of course, plainly determined that market constraints were insufficient in both the cases of initial and changed rates. But we see nothing absurd about a congressional determination that these constraints were not equally insufficient in the cases of initial and changed rates, or a policy decision that the risk that new services would not be offered outweighed the harm that this partial curtailment of the suspension power would allow. These considerations persuade us that the “gap” the Commission asks us to rectify falls far short of being an “absurd result” that would support our straining the statute’s language to find its sense.
For the foregoing reasons, we hold that section 205 does not give the Commission power to suspend initial rates. However, in view of the fact that the Commission initially viewed petitioner’s filings as changed rates, we believe the Commission should be permitted to reconsider its later determination that petitioner’s filings are initial rates. We therefore vacate the Commission’s orders in Nos. 83-1810 and 83-1632 suspending petitioner’s initial rates, and remand for renewed consideration of the propriety of characterizing Middle South’s filings as changed rather than initial rates. A new characterization would, of course, be subject to review.
III.
We now turn to the other issues raised by petitioner..First, petitioner claims that even if the Commission has power to suspend initial rates, it has no power, under section 205(e) of the Act or otherwise, to impose refund obligations on initial rates. However, because we hold that the Commission has no power to suspend initial rates, we need not decide whether, if it had that power, it could invoke an ancillary power to impose refund requirements.
Petitioner also asks us to apply our holding that the Commission has no suspension power over initial rates, not only to the Commission’s order suspending petitioner’s initial rate filings, but also to the Commission’s Order No. 303, Interpretation of Authority to Suspend Initial Rate Schedules, which reversed the Commission’s longstanding regulation, 18 C.F.R. § 2.4(d) (1983), and provided for suspension of initial rate schedules. The Commission argues that Order No. 303 is a nonreviewable interpretive rule, and that as such we have no jurisdiction to apply our holding to that rule. Because the legal effect of our holding is determined by whether or not we have jurisdiction to review Order No. 303, we are required to reach this jurisdictional issue.
We accept the Commission’s characterization of Order No. 303 as an interpretive rule that, of its own force, creates no law and binds neither the public, the agency, nor the courts. See Batterton v. Francis, 432 U.S. 416, 425 & n. 9; 97 S.Ct. 2399, 2405 & n. 9, 53 L.Ed.2d 448 (1977). It follows that if Order No. 303 had never been applied in a particular case it would be unreviewable. 'National Association of Insurance Agents v. Board of Governors, 489 F.2d 1268, 1271 (D.C.Cir.1974). Here, however, Order No. 303 plainly has been applied to petitioner. The order, in pertinent part, is simply a declaration by the agency that it reads the FPA as granting it the power to suspend initial rates. This statutory authority, and no other, underlies the Commission’s suspension of petitioner’s initial filings. Consequently, Order No. 303 became reviewable when applied to petitioner, and our holding that the Commission has no power to suspend initial rates necessarily means that Order No. 303 is an incorrect reading of the FPA.
Finally, petitioner maintains that the Commission acted ultra vires when it applied its new interpretation of its suspension powers to MSE. Petitioner maintains that the Commission must adhere to the rulemaking requirements of the APA “when it conclusively affects and substantially impacts preexisting rights with a retroactive rule that has the force of law.” Brief for Petitioner at 63. In addition, petitioner maintains that the Commission had no authority to suspend its rates prior to issuance of Order No. 303, because the Commission’s “own regulations stated it did not and the Commission had not conducted the required reassessment thereof.” Brief for Petitioner at 53.
These arguments are specious. The Commission has never purported to be able to confer upon itself additional suspension powers. Its regulation providing that “[a]n initial rate cannot be suspended,” 18 C.F.R. §§ 2.4, 2.52 (1983), was itself an interpretive rule. The Commission’s interpretation of the FPA has never had the force of law. Consequently, if the FPA had conferred suspension power over initial rates on the Commission, it would always have had that authority, and it plainly would not have been required to engage in rulemaking before exercising its suspension powers in a particular case.
IV.
For the reasons stated in Part II supra, we vacate the Commission’s orders in Nos. 83-1810 and 83-1632, and remand to the Commission for renewed consideration of whether these filings involve changed as opposed to initial rates.
It is so ordered.
. Tennessee Gas also petitioned for review of the Commission’s new interpretive rule construing its suspension power under the Natural Gas Act. In Tennessee Gas Pipeline Co. v. FERC, 736 F.2d 747 (D.C.Cir.1984), this panel dismissed Tennessee's petition because the application of the Commission’s NGA interpretive rule remained hypothetical as to Tennessee Gas, and hence was nonreviewable. However, in view of the similarity between the pertinent provisions of the FPA and the NGA, we stated that we would accept Tennessee’s presentation as "the submission of an amicus curiae in our review of FERC’s Middle South adjudication.” Id. at 748.
. The Commission argues that the Supreme Court’s conclusion in TAPS about the Interstate Commerce Act applies equally to the Federal Power Act. According to FERC, in 1935 Congress deliberately modeled the FPA on the ICA. See Brief for the Respondent FERC at 20. Not only does the legislative history substantiate this derivation, in FERC’s view, the language employed in § 205 of the FPA parallels that used in §§ 1, 6 and 15(7) of the ICA, 49 U.S.C. §§ 1, 6 and 15(7) (1976). Respondent goes on to note that the courts have consistently interpreted the FPA on the basis of the ICA. Brief for the Respondent FERC at 20-21. See, e.g., Papago Tribal Utility Authority v. FERC, 628 F.2d 235, 241-43 & n. 19 (D.C.Cir.1980); Municipal Light Boards v. FPC, 450 F.2d 1341, 1349 (D.C.Cir.1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972). While we agree that the FPA was modeled on the ICA, we find the Commission’s argument both overbroad and circular: we cannot discharge our. duty to construe the FPA in accordance with Congressional intent by presupposing that the FPA is identical with the ICA. Modeling is not cloning.
. Of the five commissioners present at the May 29, 1945 meeting, two had begun to serve on the Commission before Congress passed the Federal Power Act in 1935. A third commissioner had begun his tenure on the Commission after the Federal Power Act was passed but before the Natural Gas Act was passed in 1938.
. Not only has the FPC denied it had the power to suspend initial rates over a forty-five year period; the courts, too, have invariably held the same view. Indiana & Michigan Municipal Distributors v. FERC, 659 F.2d 1193, 1196 (D.C.Cir.1981); Florida Power & Light Co. v. FERC, 617 F.2d 809, 812 n. 2 (D.C.Cir.1980); Otter Tail Power Co. v. FERC, 583 F.2d 399, 405-06 (8th Cir.1978), cert. denied, 440 U.S. 950, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979); Sun Oil Co. v. FPC, 281 F.2d 275, 277-78 (5th Cir.1960); Phillips Petroleum Co. v. FPC, 258 F.2d 906, 917-18 (10th Cir.1958). No court has held to the contrary. We recognize that none of these cases considers the relevance of the Supreme Court's decision in TAPS, but our own analysis of that decision shows that it is not controlling here. We join in the assessment of § 205 offered by Judge Lumbard in Florida Power & Light Co., 617 F.2d at 812 n. 2: "[a]s a matter of commonsensical construction, ‘any such new schedule' in § 205(e) refers to the immediately preceding ‘new schedules’ in § 205(d) rather than to the more general and more distant'schedules’ in § 205(c).”
. We do not pretend to know that these reasons actually motivated Congress. As this court noted in Indiana & Michigan Municipal Distributors Association v. FERC, 659 F.2d 1193, 1196 n. 10 (D.C.Cir.1981), ‘‘[t]he legislative history surrounding the Federal Power Act of 1935 (S.2796) gives no illumination of why Congress chose to limit the Commission’s retroactive-rate-making powers
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_crmproc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of 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, Plaintiff-Appellee, v. Thomas R. SCHIFFBAUER, Defendant-Appellant.
No. 90-10624.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 10, 1991.
Decided Feb. 4, 1992.
Bram L. Jacobson, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant.
Janet L. Patterson, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.
Before CANBY, and KOZINSKI, Circuit Judges, and NIELSEN, District Judge.
The Honorable Wm. Fremming Nielsen, United States District Judge for the Eastern District of Washington, sitting by designation.
CANBY, Circuit Judge:
Thomas Richard Schiffbauer appeals his bank robbery sentence. He contends that the district court illegally sentenced him to a term exceeding the maximum penalty authorized by 18 U.S.C. § 3581(b). We affirm.
BACKGROUND
A federal grand jury indicted Schiffbauer for the armed robbery of Security Savings and Loan in Mesa, Arizona. Pursuant to a plea agreement, Schiffbauer pled guilty to the lesser included offense of unarmed robbery in violation of 18 U.S.C. § 2113(a). At his sentencing hearing, Schiffbauer contended that 18 U.S.C. § 3581(b) classifies this offense as a Class C offense and thereby limits the maximum statutory term to twelve years. The district court rejected this argument and chose to rely on 18 U.S.C. § 3559(b). That statute provides that the maximum term is the term authorized by the statute describing the substantive offense. Because the bank robbery statute authorizes a twenty-year maximum term, the district court imposed a fourteen-year sentence, together with other terms not relevant to this appeal.
DISCUSSION
Schiffbauer challenges the district court’s sentence and its interpretation of federal statutes. We review these matters de novo. See United States v. Schiek, 806 F.2d 943, 944 (9th Cir.1986), cert. denied, 481 U.S. 1032, 107 S.Ct. 1962, 95 L.Ed.2d 534 (1987); United States v. Martinez-Jimenez, 864 F.2d 664, 665-66 (9th Cir.), cert. denied, 489 U.S. 1099, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989).
Schiffbauer contends that the district court sentenced him to a term exceeding the maximum allowable penalty. In determining the maximum term, 18 U.S.C. § 3559 directs us to the statute describing the substantive offense. According to this section, Schiffbauer's fourteen-year sentence clearly fell within the twenty-year range authorized by the bank robbery statute. See 18 U.S.C. § 2113(a).
Schiffbauer argues, however, that 18 U.S.C. § 3581 limited the district court to a twelve-year maximum term. As he notes, section 3559 classifies bank robbery as a Class C felony. 18 U.S.C. § 3559(a)(3). Section 3581 establishes that the sentence for this offense is not more than twelve years. 18 U.S.C. § 3581(b). Moreover, another section directs courts to sentence individuals in accord with section 3581. 18 U.S.C. § 3551(b)(3). Schiffbauer therefore concludes that the district court erred in imposing a fourteen-year term.
We have recently rejected a similar argument. In United States v. LaFleur, 952 F.2d 1537 (9th Cir.1991), we held that the letter-classification sentencing scheme of sections 3559(a) and 3581(b) did not apply to the offense of first degree murder set forth in 18 U.S.C. § 1111, because the latter statute specified its own penalty of a mandatory life sentence. We said that “[tjhere is no indication that § 3581 was intended to modify clearly established statutory sentences.” Id. at 1546. The Second and Third Circuits have reached similar conclusions. See United States v. Gonza lez, 922 F.2d 1044, 1050 (2d Cir.1991); United States v. Donley, 878 F.2d 735, 740 (3d Cir.1989), cert. denied, 494 U.S. 1058, 110 S.Ct. 1528, 108 L.Ed.2d 767 (1990).
Here, too, we conclude that Congress did not intend the penalties set in section 3581(b) to apply to offenses that received letter grades for the first time in section 3559(b). Section 3581(b)’s penalties apply only to offenses that are assigned letter classifications in the statutes describing them. Because Congress has continued to specify maximum penalties without reference to letter-grade classifications, however, section 3581(b) has not yet had any crimes upon which to operate. See Crime Control Act of 1990, Pub.L. 101-647, §§ 322 & 1701, 104 Stat. 4789, 4818 & 4843 (1990).
Section 3559(b), on the other hand, applies to statutes, like the pre-existing statute defining bank robbery, that provide a specific maximum sentence in the statute describing the crime. Thus, the plain language of section 3559(b) states that all of the incidents of the letter grading system shall apply “except that the maximum term of imprisonment is the term authorized by the law describing the offense” (emphasis added).
Congress, at least up to now, has not implemented the letter-grade system contemplated by section 3581(b). It follows that section 3581 is inapplicable to the existing bank robbery offense. This construction follows from the statutes and Congress’s continuing practice of specifying maximum sentences in crime legislation. It is also in accord with the decisions of two other circuits and the views of the Sentencing Commission.
AFFIRMED
. Title 18, United States Code, section 3559, provides in part:
(a) An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is—
(3) less than twenty-five years but ten or more years, as a Class C felony.
(b) An offense classified under subsection (a) carries all the incidents assigned to the applicable letter designation, except that the maximum term of imprisonment is the term authorized by the law describing the offense. (Emphasis added.)
. Title 18, United States Code, section 3581 provides in part:
(a) A defendant who has been found guilty of an offense may be sentenced to a term of imprisonment.
(b) The authorized terms of imprisonment are....
(3) for a Class C felony not more than twelve years.
. According to the United States Sentencing Commission, Congress has abandoned its plan to assign existing federal crimes letter-grade sentencing classifications. Questions Most Frequently Asked About the Sentencing Guidelines, Volume IV, p. 8 (Dec. 1, 1990). The Commission’s position, of course, cannot serve as evidence of the intent of Congress. We find the Commission’s interpretation to have persuasive value, however, because of its experience and familiarity with the federal criminal laws.
. Because section 3581 has no letter-grade crimes upon which to operate, the direction of section 3551(b)(3) to sentence in accord with section 3581 is equally ineffectual.
.Because there is no ambiguity, Schiffbauer’s attempt to invoke the rule of lenity must fail. See Moskal v. United States, — U.S. -, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990).
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_r_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
Charles W. FOSTER v. DONORA SOUTHERN RAILROAD COMPANY, Appellant.
No. 12090.
United States Court of Appeals Third Circuit.
Argued Feb. 21, 1957.
Decided March 4, 1957.
Gilbert J. Helwig, Pittsburgh, Pa. (Edmund K. Trent, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief), for appellant.
Frederic G. Weir, Pittsburgh, Pa. (Oliver, Brandon & Shearer, Pittsburgh, Pa., on the brief), for appellee.
Before MARIS, McLAUGHLIN and STALEY, Circuit Judges.
PER CURIAM.
This is an appeal by the defendant railroad company from a verdict and judgment of $25,000 against it in a suit brought by an injured employee under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., in the District Court for the Western District of Pennsylvania. The sole question for our determination is whether the verdict was so grossly excessive that the refusal of the district court to grant a new trial because of it was an abuse of discretion which this court will correct. The district court filed an opinion in which it set forth its reasons for refusing to interfere with the verdict. 144 F.Supp. 297. While the verdict is large our examination of the record satisfies us that the evidence of the plaintiff’s injuries was sufficient to support it. It would serve no useful purpose to recite the evidence in detail. It is enough to say that we do not think that in permitting the verdict to stand the district court abused the broad discretion which the law entrusts to it in this regard.
The judgment of the district court will be affirmed.
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
APEX HOSIERY CO. v. LEADER et al.
No. 6977.
Circuit Court of Appeals, Third Circuit.
Jan. 3, 1939.
M. Herbert Syme, of Philadelphia, Pa., for appellants.
Sylvan H. Hirsch, of Philadelphia, Pa., (Arno P. Mowitz, Mowitz & Kohlhas, and Sundheim, Folz & Sundheim, all of Philadelphia, Pa., of counsel), for appellee.
Before DAVIS, MARIS, and CLARK, Circuit Judges.
PER CURIAM.
-The defendants in an action for treble damages under the Sherman Anti-Trust Act § 7, 15 U.S.C.A. § 15, note, have appealed from an order of the court below made under Federal Rules of Civil Procedure, rule 34, 28 U.S.C.A. following section 723c, for the discovery and production by them of documents for inspection,copying and photographing by the plaintiff for use at the trial of the action. An order of this nature is interlocutory and, therefore, not appealable. This has been expressly decided by the Supreme Court in the cases of Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275, and Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67. In the former case Mr. Justice Brandéis said (pages 223, 224, 49 S.Ct. page 119) : “The disposition made of the motion will necessarily determine the conduct of the trial and may vitally affect the result. In essence, the motion resembles others made before or during a trial to secure or to suppress evidence, such as applications to suppress a deposition, Grant Bros. Const. Co. v. United States, 232 U.S. 647, 661, 662, 34 S.Ct. 452, 58 L.Ed. 776; Pullman Co. v. Jordan (C.C. A.) 218 F. 573, 577; to compel the production of books or documents, Pennsylvania R. Co. v. International Coal Mining Co. (C.C.A.) 156 F. 765; for leave to make physical examination of a plaintiff, Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734; or for a subpoena duces tecum, Murray v. Louisiana, 163 U.S. 101, 107, 16 S.Ct. 990, 41 L.Ed. 87; American Lithographic Co. v. Werclcmeister, 221 U.S. 603, 608-610, 31 S.Ct. 676, 55 L.Ed. 873. The orders made upon such applications, so far as they affect the rights only of parties to the litigation, are interlocutory. Compare Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686. It is only when disobedience happens to result in an order punishing criminally for contempt, that a party may have review by appellate proceedings before entry of the final judgment in the cause. Union Tool Co. v. Wilson, 259 U.S. 107, 110, 111, 42 S.Ct. 427, 66 L. Ed. 848.”
While the appeal must be dismissed for want of jurisdiction, we think it may fairly be said that the order entered by the learned District Judge was most carefully drawn to prevent the plaintiff from unduly prying into the defendants’ affairs.
Appeal dismissed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CONTINENTAL CASUALTY CO. et al. v. LAWSON, Deputy Com’r.
No. 6684.
Circuit Court of Appeals, Fifth Circuit.
April 15, 1933.
SIBLEY, Circuit Judge, dissenting.
Geo. L. Patterson, and Dewey Knight, both of Miami, Fla., for appellants.
W. P. Hughes, U. S. Atty., of Jacksonville, Fla., and B. R. Cisco, Asst. U. S. Atty., of Miami, Fla., for appellee.
Before BRYAN, FOSTER, and SIB-LEY, Circuit Judges.
BRYAN, Circuit Judge.
This is an appeal from a decree dismissing a bill to enjoin the enforcement of a compensation award which was made in reliance upon provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, 33 USCA, chapter 18. The challenged award was made by a deputy commissioner in favor of Joseph I. Roberts, who was injured while repairing the Elsie D., a small tugboat of less than five tons net. At the time of injury the boat was on a marine railway, by means of which it had been theretofore removed for repairs from the navigable waters of the Miami river. Roberts was doing the repair work under employment by the owner of the boat. He was a first-class carpenter, but did not have a steady job. During the winter months he was able to secure reasonably regular employment in a boatyard, but during the dull summer season he was usually laid off with other carpenters. The deputy commissioner found that during the year immediately preceding the date of injury he had been paid by one employer about $500, and by two others small amounts which were not stated; but the award was based on the annual earnings, amounting to $1,700, of another employee of the same class whose employment was practically continuous. The Appellants are the owner of the boat and the insurance carrier. Their main contention is that the injury was not covered by the act, because it occurred on a marine railway. They also make the minor contention that the deputy commissioner, even if he had jurisdiction to award compensation, made an excessive award and one founded upon an erroneous theory.
The “coverage” of the act is found in section 3 (a), 33 USCA § 903 (a), which, in so far as is materia] here, is as follows: “Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law.”
The words in parenthesis also appear in section 2 (4) (33 USCA § 902 (4), where the term “employer” is defined. The important question is whether the words “any dry dock” are intended to include a marine railway. That question has been answered in the negative by the District Court for the Eastern District of Virginia in Colonna’s Shipyard v. Lowe, 22 F.(2d) 843, 844, and by the Circuit Court of Appeals for the Third Circuit, judge Woolley dissenting, in Norton v. Vesta Coal Co. (The Warren Elsey) 63 F.(2d) 165, 166. So far as we are advised there has been no other decision directly in point, except the decision of the court below in this case. The opinion in the Lowe Case proceeds on the theory that recovery was there sought for a maritime tort; and, after citing among others the cases of Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, 42 S. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008, and Millers’ Indemnity Underwriters v. Braud, 270 U. S. 59, 46 S. Ct. 194, 70 L. Ed. 470, in support of the proposition that state compensation laws may validly provide exclusive relief even in cases involving maritime torts, provided the application of the local law does not necessarily work “material prejudice to any characteristic feature of the general maritime law,” that opinion held that, “since the vessel and the railway on which she was drawn were then both on high land, and the injury was sustained under those conditions, the tort was nonmaritime,” the Virginia Compensation Act rather than the federal aet was exclusively applicable. In the case of the Warren Elsey the majority opinion, insisting upon a strict construction of the term “dry dock,” holds that it would be mere speculation, to impute to Congress an intention “to include something it did not say it included.” Notwithstanding these two decisions, we feel obliged to agree to the dissenting opinion in the later ease of Judge Woolley, and to adopt a more liberal interpretation of the phrase, as he correctly quotes it, “any dry dock.”
It was within the power of Congress to extend to employees working on marine railways the same right to compensation for injury received in the course of their employment that it admittedly has provided for employees working on floating and graven dry docks. Indeed, in North Pacific Steamship Co. v. Hall Brothers, 249 U. S. 119, 39 S. Ct. 221, 63 L. Ed. 510, a marine railway in a shipyard was referred to as a dry dock, and it was said that the nature of the service was the same whether repairs were made while the vessel was afloat, or in dry dock, or hauled up on a marine railway. The doubt previously intimated in The Robert W. Parsons, 191 U. S. 17, at pages 33 and 34, 24 S. Ct. 8, 48 L. Ed. 73, was there resolved in favor of the admiralty jurisdiction over marine railways in cases depending upon contract. In State Industrial Commission of State of New York v. Nordenholt Corp., 259 U. S. 263, 42 S. Ct. 473, 66 L. Ed. 933, 25 A. L. R. 1013, it was said that an award under a state compensation law is not made on the theory that a tort has been committed, but that the law under which such an award is made is read into and becomes a part of the contract of employment between employer and employee. And the same is true of an award made pursuant to the act under consideration, which “within its sphere * * * was designed to accomplish the same general purpose as the Workmen’s Compensation Laws of the states.” Crowell v. Benson, 285 U. S. 22, 40, 52 S. Ct. 285, 288, 76 L. Ed. 598. The question whether jurisdiction over a maritime tort could be asserted under the compensation laws of the states, or existed exclusively in admiralty, was an important one when the decisions were rendered in the Rohde, the Braud, and other similar eases referred to in Colonna’s Shipyard Co. v. Lowe, supra; but since the passage of this aet the importance of that question has largely disappeared. Before its passage, recovery for injuries to longshoremen and harbor workers could be had only for maritime torts. Since its passage, compensation is awarded in ease of injury regardless of the fault or negligence of employer, employee, fellow servant, or of assumed risk. Congress did not adopt a compensation act of its own until after it had unsuccessfully attempted in 1917 and 1922 to authorize recovery under state compensation laws, as well as under the ancient provision of the Judiciary Act of 1789 (1 Stat. 73), “saving to suitors,” in addition to the right to invoke the admiralty and maritime jurisdiction, “the right of a common law remedy, where the common law is competent to give it.” The acts of 1917 and 1922 were both held by the Supreme Court to be unconstitutional because they undertook to delegate the power of Congress to the states, and, in violation of article 3, § 2, of the Constitution, to interfere with the power of federal courts over cases within the admiralty and maritime jurisdiction; that of 1917 (40 Stat. 395) in Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; and that of 1922 (42 Stat. 634 [28 USCA §§41 (3), 371]) in Washington v. W. C. Dawson & Co., 264 U. S. 219, 44 S. Ct. 302, 305, 68 L. Ed. 646. In the opinion in the last-cited case, decided in 192.4, it is said: “Without doubt Congress has power to alter, amend, or revise the maritime law by statutes of general application embodying its will and judgment. This power, wo think, would permit enactment of a general Employers’ Liability Law or general provisions for compensating injured employees; but it may not be delegated to the several states.” In response to this suggestion, Congress in 1927 enacted the Longshoremen’s and Harbor Workers’ Compensation Law. The elaborate provisions of the Aet, viewed in the light of prior Congressional legislation as interpreted by the Supreme Court, leaves no room for doubt, as it appears to us, that Congress intended to exercise to the fullest extent all the power and jurisdiction it had over the subject-matter. The liability of an employer who makes provision to secure compensation to his employees is exclusive of all other liability that might be asserted by them against him. State compensation laws and this compensation law of Congress are mutually exclusive of each other. The existence of the act of 1927 must be taken into consideration and given effect in determining whether under section 3 (33 USCA § 903) thereof the compensation laws of the states are valid and applicable; for state laws cannot now validly apply to a subject-matter over which Congress has exercised its exclusive jurisdiction. In our opinion it was not the intention of Congress to provide compensation for harbor workers only while they were working on ships that had been placed on floating or graven docks and to deny compensation if the same employees happened to be repairing a vessel on a marine railway. Such workmen might have been engaged on the same day in all three classes of work, since it is not unusual in a large shipyard for employers to use all three methods of taking ships out of the water for the purpose of repairing them during the same day or even at the same time. The act does not undertake to provide compensation for injuries occurring on the ordinary dock or wharf used in loading and unloading cargo, doubtless because in the opinion of Congress, either this kind of dock, being an extension of the land, was exclusively within the jurisdiction of the states, Cleveland Terminal & V. Co. v. Cleveland S. S. Co., 208 U. S. 316, 28 S. Ct. 414, 52 L. Ed. 508, 13 Ann. Cas. 1215; State Industrial Commission of State of New York v. Nordenholt Corp., supra; Smith v. Taylor, 276 U. S. 179, 48 S. Ct. 228, 72 L. Ed. 520; or because the Act would not apply to most cases of injury to longshoremen who usually are employed to work on the dock or wharf not by the shipowners but by independent contracting stevedores. The use of the phrase “including any dry dock” in section 3 discloses also an intention to exclude the ordinary cargo dock or wharf; to distinguish between the making of repairs to ships and the handling of cargo on shore; to assume jurisdiction over the former but not over the latter class of work. It is faintly suggested that the owner of the boat acted in the capacity of master in hiring Roberts, the employee who was injured; and that, since section 3 (a) (1) prohibits payment of compensation on account of injury sustained by an employee engaged by the master to repair vessels under 18 tons net, the deputy commissioner was without jurisdiction to make an award. A complete answer to this suggestion is that the boat had no master. The obvious purpose of the subsection is to prevent the master of a small vessel from creating a liability against the owner. That provision does not apply in the event the owner himself makes the contract of employment. The district judge in our opinion correctly held that the deputy commissioner had jurisdiction to make an award.
The deputy commissioner correctly found that the amount of the award should be determined under § 10 (c), 33 USCA § 910 (c), since the employee was unable to secure employment during substantially the whole of the year immediately preceding his injury. But instead of basing his award on the earnings of the claimant, the deputy commissioner based it upon the higher earnings of an employee of the same class who enjoyed regular employment. We think this was error,' and that the earnings of the claimant himself and not of another employee must be used in arriving at the amount of compensation to be allowed. “Earning capacity,” as used in this subsection, means willingness to work considered in connection with opportunity to work. Andrew F. Mahony Co. v. Marshall (D. C.) 46 F.(2d) 539; Baltimore & O. R. R. Co. v. Clark (C. C. A.) 59 F.(2d) 595. Because, and only because, of this error in the method of determining the amount of the award the decree will have to be reversed.
Accordingly, the decree is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
The reports of the committees of both Houses are copied in a footnote to the opinion in Crowell v. Benson, 285 U. S. 22, at pages 40 and 41, 52 S. Ct. 285, 76 L. Ed. 538.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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sc_petitioner
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027
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the 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.
UNITED STATES v. WHEELER
No. 76-1629.
Argued January 11,1978
Decided March 22, 1978
Stewart, J., delivered the opinion of the Court, in which all other Members joined except Brennan, J., who took no part in the consideration or decision of the case.
Stephen L. Urbanczyk argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, Deputy Solicitor General Barnett, Jerome M. Feit, and Michael W. Farrell.
Thomas W. O’Toole argued the cause and filed a brief for respondent.
Mr. Justice Stewart
delivered the opinion of the Court.
The question presented in this case is whether the Double Jeopardy Clause of the Fifth Amendment bars the prosecution of an Indian in a federal district court under the Major Crimes Act, 18 U. S. C. § 1153, when he has previously been convicted in a tribal court of a lesser included offense arising out of the same incident.
I
On October 16, 1974, the respondent, a member of the Navajo Tribe, was arrested by a tribal police officer at the Bureau of Indian Affairs High School in Many Farms, Ariz., on the Navajo Indian Reservation. He was taken to the tribal jail in Chinle, Ariz., and charged with disorderly conduct, in violation of Title 17, § 351, of the Navajo Tribal Code (1969). On October 18, two days after his arrest, the respondent pleaded guilty to disorderly conduct and a further charge of contributing to the delinquency of a minor, in violation of Title 17, § 321, of the Navajo Tribal Code (1969). He was sentenced to 15 days in jail or a fine of $30 on the first charge and to 60 days in jail (to be served concurrently with the other jail term) or a fine of $120 on the second.
Over a year later, on November 19, 1975, an indictment charging the respondent with statutory rape was returned by a grand jury in the United States District Court for the District of Arizona. The respondent moved to dismiss this indictment, claiming that since the tribal offense of contributing to the delinquency of a minor was a lesser included offense of statutory rape, the proceedings that had taken place in the Tribal Court barred a subsequent federal prosecution. See Brown v. Ohio, 432 U. S. 161. The District Court, rejecting the prosecutor’s argument that “there is not an identity of sovereignties between the Navajo Tribal Courts and the courts of the United States,” dismissed the indictment. The Court of Appeals for the Ninth Circuit affirmed the judgment of dismissal, concluding that since “Indian tribal courts and United States district courts are not arms of separate sovereigns,” the Double Jeopardy Clause barred the respondent’s trial. 545 F. 2d 1255, 1258. We granted certiorari to resolve an intercircuit conflict. 434 U. S. 816.
II
In Bartkus v. Illinois, 359 U. S. 121, and Abbate v. United States, 359 U. S. 187, this Court reaffirmed the well-established principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and. a state prosecution does not bar a federal one. The basis for this doctrine is that prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, “subject [the defendant] for the same offence to be twice put in jeopardy”:
“An offence, in its legal signification, means the transgression of a law.... Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both.... That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.” Moore v. Illinois, 14 How. 13, 19-20.
It was noted in Abbate, supra, at 195, that the “undesirable consequences” that would result from the imposition of a double jeopardy bar in such circumstances further support the “dual sovereignty” concept. Prosecution by one sovereign for a relatively minor offense might bar prosecution by the other for a much graver one, thus effectively depriving the latter of the right to enforce its own laws. While, the Court said, conflict might be eliminated by making federal jurisdiction exclusive where it exists, such a “marked change in the distribution of powers to administer criminal justice” would not be desirable. Ibid.
The “dual sovereignty” concept does not apply, however, in every instance where successive cases are brought by nominally different prosecuting entities. Grafton v. United States, 206 U. S. 333, held that a soldier who had been acquitted of murder by a federal court-martial could not be retried for the same offense by a territorial court in the Philippines. And Puerto Rico v. Shell Co., 302 U. S. 253, 264-266, reiterated that successive prosecutions by federal and territorial courts are impermissible because such courts are “creations emanating from the same sovereignty.” Similarly, in Waller v. Florida, 397 U. S. 387, we held that a city and the State of which it is a political subdivision could not bring successive prosecutions for unlawful conduct growing out of the same episode, despite the fact that state law treated the two- as separate sovereignties.
The respondent contends, and the Court of Appeals held, that the “dual sovereignty” concept should not apply to successive prosecutions by an Indian tribe and the United States because the Indian tribes are not themselves sovereigns, but derive their power to punish crimes from the Federal Government. This argument relies on the undisputed fact that Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government., Winton v. Amos, 255 U. S. 373, 391-392; In re Heff, 197 U. S. 488, 498-499; Lone Wolf v. Hitchcock, 187 U. S. 553; Talton v. Mayes, 163 U. S. 376, 384. Because o-f this all-encompassing federal power, the respondent argues that the tribes are merely “arms of the federal government” which, in the words of his brief, “owe their existence and vitality solely to the political department of the federal government.”
We think that the respondent and the Court of Appeals, in relying on federal control over Indian tribes, have misconceived the distinction between those cases in which the “dual sovereignty” concept is applicable and those in which it is not. It is true that Territories are subject to the ultimate control of Congress, and cities to the control of the State which created them. But that fact was not relied upon as the basis for the decisions in Grafton, Shell Co., and Waller. What differentiated those cases from Bartkus and Abbate was not the extent of control exercised by one prosecuting authority over the other but rather the ultimate source of the power under which the respective prosecutions were undertaken.
Bartkus and Abbate rest on the basic structure of our federal system, in which States and the National Government are separate political communities. State and Federal Governments “[derive] power from different sources,” each from the organic law that established it. United States v. Lanza, 260 U. S. 377, 382. Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing, so each “is exercising its own sovereignty, not that of the other.” Ibid. And while the States, as well as the Federal Government, are subject to the overriding requirements of the Federal Constitution, and the Supremacy Clause gives Congress within its sphere the power to enact laws superseding conflicting laws of the States, this degree of federal control over the exercise of state governmental power does not detract from the fact that it is a State’s own sovereignty which is the origin of its power.
By contrast, cities are not sovereign entities. “Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.” Reynolds v. Sims, 377 U. S. 533, 575. A city is nothing more than “an agency of the State.” Williams v. Eggleston, 170 U. S. 304, 310. Any power it has to define and punish crimes exists only because such power has been granted by the State; the power “derive [s]... from the source of [its] creation.” Mount Pleasant v. Beckwith, 100 U. S. 514, 524. As we said in Waller v. Florida, supra, at 393, “the judicial power to try petitioner... in municipal court springs from the same organic law that created the state court of general jurisdiction.”
Similarly, a territorial government is entirely the creation of Congress, “and its judicial tribunals exert all their powers by authority of the United States.” Grafton v. United States, supra, at 354; see Cincinnati Soap Co. v. United States, 301 U. S. 308, 317; United States v. Kagama, 118 U. S. 375, 380; American Ins. Co. v. Canter, 1 Pet. 511, 542. When a territorial government enacts and enforces criminal laws to govern its inhabitants, it is not acting as an independent political community like a State, but as “an agency of the federal government.” Domenech v. National City Bank, 294 U. S. 199, 204-205.
Thus, in a federal Territory and the Nation, as in a city and a State, “[t]here is but one system of government, or of laws operating within [its] limits.” Benner v. Porter, 9 How. 235, 242. City and State, or Territory and Nation, are not two separate sovereigns to whom the citizen owes separate allegiance in any meaningful sense, but one alone. And the “dual sovereignty” concept of Bartkus and Abbate does not permit a single sovereign to impose multiple punishment for a single offense merely by the expedient of establishing multiple political subdivisions with the power to punish crimes.
Ill
It is undisputed that Indian tribes have power to enforce their criminal laws against tribe members. Although physically within the territory of the United States and subject to ultimate federal control, they nonetheless remain “a separate people, with the power of regulating their internal and social relations.” United States v. Kagama, supra, at 381-382; Cherokee Nation v. Georgia, 5 Pet. 1, 16. Their right oh internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions. United States v. Antelope, 430 U. S. 641, 643 n. 2; Talton v. Mayes, 163 U. S., at 380; Ex parte Crow Dog, 109 U. S. 656, 571-572; see 18 U. S. C. § 1152 (1976 ed.), infra, n. 21. As discussed above in Part II, the controlling question in this case is the source of this power to punish tribal offenders: Is it a part of inherent tribal sovereignty, or an aspect of the sovereignty of the Federal Government which has been delegated to the tribes by Congress?
A
The powers of Indian tribes are, in general, “inherent powers of a limited sovereignty which has never been extinguished.” F. Cohen, Handbook of Federal Indian Law 122 (1945) (emphasis in original). Before the coming of the Europeans, the tribes were self-governing sovereign political communities. See McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 172. Like all sovereign bodies, they then had the inherent power to prescribe laws for their members and to punish infractions of those laws.
Indian tribes are, of course, no longer “possessed of the full attributes of sovereignty.” United States v. Kagama, supra, at 381. Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised. By specific treaty provision they yielded up other sovereign powers; by statute, in the exercise of its plenary control, Congress has removed still others.
But our cases recognize that the Indian tribes have not given up their full sovereignty. We have recently said: “Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory.... [They] are a good deal more than 'private, voluntary organizations.’ ” United States v. Mazurie, 419 U. S. 544, 557; see also Turner v. United States, 248 U. S. 354, 354-355; Cherokee Nation v. Georgia, supra, at 16-17. The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. See Oliphant v. Suquamish Indian Tribe, ante, p. 191.
B
It is evident that the sovereign power to punish tribal offenders has never been given up by the Navajo Tribe and that tribal exercise of that power today is therefore the continued exercise of retained tribal sovereignty. Although both of the treaties executed by the Tribe with the United States provided for punishment by the United States of Navajos who commit crimes against non-Indians, nothing in either of them deprived the Tribe of its own jurisdiction to charge, try, and punish members of the Tribe for violations of tribal law. On the contrary, we have said that “[ijmplicit in these treaty terms... was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed.” Williams v. Lee, 358 U. S. 217, 221-222; see also Warren Trading Post v. Tax Comm’n, 380 U. S. 685.
Similarly, statutes establishing federal criminal jurisdiction over crimes involving Indians have recognized an Indian tribe’s jurisdiction over its members. The first Indian Trade and Intercourse Act, Act of July 22, 1790, § 5, 1 Stat. 138, provided only that the Federal Government would punish offenses committed against Indians by “any citizen or inhabitant of the United States”; it did not mention crimes committed by Indians. In 1817 federal criminal jurisdiction was extended to crimes committed within the Indian country by “any Indian, or other person or persons,” but “any offence committed by one Indian against another, within any Indian boundary” was excluded. Act of Mar. 3, 1817, ch. 92, 3 Stat. 383. In the Indian Trade and Intercourse Act of 1834, § 25, 4 Stat. 733, Congress enacted the direct progenitor of the General Crimes Act, now 18 U. S. C. § 1152 (1976 ed.), which makes federal enclave criminal law generally applicable to crimes in “Indian country.” In this statute Congress carried forward the intra-Indian offense exception because “the tribes have exclusive jurisdiction” of such offenses and “we can [not] with any justice or propriety extend our laws to” them. H. It. Rep. No. 474, 23d Cong., 1st Sess., 13 (1834). And in 1854 Congress expressly recognized the jurisdiction of tribal courts when it added another exception to the General Crimes Act, providing that federal courts would not try an Indian “who has been punished by the local law of the tribe.” Act of Mar. 27,1854, § 3,10 Stat. 270. Thus, far from depriving Indian tribes of their sovereign power to punish offenses against tribal law by members of a tribe, Congress has repeatedly recognized that power and declined to disturb it.
Moreover, the sovereign power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 667-668; Johnson v. M’Intosh, 8 Wheat. 543, 574. They cannot enter into direct commercial or governmental relations with foreign nations. Worcester v. Georgia, 6 Pet. 515, 559; Cherokee Nation v. Georgia, 5 Pet., at 17-18; Fletcher v. Peck, 6 Cranch 87, 147 (Johnson, J., concurring). And, as we have recently held, they cannot try nonmembers in tribal courts. Oliphant v. Suquamish Indian Tribe, ante, p. 191.
These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe’s dependent status. “[T]he settled doctrine of the law of nations is, that a weaker power does not surrender its independence — its right to self government, by associating with a stronger, and taking its protection.” Worcester v. Georgia, supra, at 560-561.
C
That the Navajo Tribe’s power to punish offenses against tribal law committed by its members is an aspect of its retained sovereignty is further supported by the absence of any federal grant of such power. If Navajo self-government were merely the exercise of delegated federal sovereignty, such a delegation should logically appear somewhere. But no provision in the relevant treaties or statutes confers the right of self-government in general, or the power to punish crimes in particular, upon the Tribe.
It is true that in the exercise of the powers of self-government, as in all other matters, the Navajo Tribe, like all Indian tribes, remains subject to ultimate federal control. Thus, before the Navajo Tribal Council created the present Tribal Code and tribal courts, the Bureau of Indian Affairs established a Code of Indian Tribal Offenses and a Court of Indian Offenses for the reservation. See 25 CFR Part 11 (1977); cf. 25 U. S. (¡3. § 1311. Pursuant to federal regulations, the present Tribal Code was approved by the Secretary of the Interior before becoming effective. See 25 CFR § 11.1 (e) (1977). Moreover, the Indian Reorganization Act of 1934, § 16, 48 Stat. 987, 25 U. S. C. § 476, and the Act of Apr. 19, 1950, § 6, 64 Stat. 46, 25 U. S. C. § 636, each authorized the Tribe to adopt a constitution for self-government. And the Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U. S. C. § 1302, made most of the provisions of the Bill of Rights applicable to the Indian tribes and limited the punishment tribal courts could impose to imprisonment for six months, or a fine of $500, or both.
But none of these laws created the Indians’ power to* govern themselves and their right to punish crimes committed by tribal offenders. Indeed, the Wheeler-Howard Act and the Navajo-Hopi Rehabilitation Act both recognized that Indian tribes already had such power under “existing law.” See Powers of Indian Tribes, 55 I. D. 14 (1934). That Congress has in certain ways regulated the manner and extent of the tribal power of self-government does not mean that Congress is the source of that power.
In sum, the power to punish offenses against tribal law committed by Tribe members, which was part of the Navajos’ primeval sovereignty, has never been taken away from them, either explicitly or implicitly, and is attributable in no way to any delegation to them of federal authority. It follows that when the Navajo Tribe exercises this power, it does so as part of its retained sovereignty and not as an arm of the Federal Government
D
The conclusion that an Indian tribe’s power to punish tribal offenders is part of its own retained sovereignty is clearly reflected in a case decided by this Court more than 80 years ago, Talton v. Mayes, 163 U. S. 376. There a Cherokee Indian charged with murdering another Cherokee in the Indian Territory claimed that his indictment by the Tribe was defective under the Grand Jury Clause of the Fifth Amendment. In holding that the Fifth Amendment did not apply to tribal prosecutions, the Court stated:
“The case... depends upon whether the powers of local government exercised by the Cherokee nation are Federal powers created by and springing from the Constitution of the United States, and hence controlled by the Fifth Amendment to that Constitution, or whether they are local powers not created by the Constitution, although subject to its general provisions and the paramount authority of Congress. The repeated adjudications of this Court have long since answered the former question in the negative....
“True it is that in many adjudications of this court the fact has been fully recognized, that although possessed of these attributes of local self government, when exercising their tribal functions, all such rights are subject to the supreme legislative authority of the United States.... But the existence of the right in Congress to regulate the manner in which the local powers of the Cherokee nation shall be exercised does not render such local powers Federal powers arising from and created by the Constitution of the United States.” Id., at 382-384.
The relevance of Talton v. Mayes to the present case is clear. The Court there held that when an Indian tribe criminally punishes a tribe member for violating tribal law, the tribe acts as an independent sovereign, and not as an arm of the Federal Government. Since tribal and federal prosecutions are brought by separate sovereigns, they are not “for the same offence,” and the Double Jeopardy Clause thus does not bar one when the other has occurred.
IV
The respondent contends that, despite the fact that successive tribal and federal prosecutions are not “for the same offence,” the “dual sovereignty” concept should be limited to successive state and federal prosecutions. But we cannot accept so restrictive a view of that concept, a view which, as has been noted, would require disregard of the very words of the Double Jeopardy Clause. Moreover, the same sort of “undesirable consequences” identified in Abbate could occur if successive tribal
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_petitionerstate
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20
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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.
State of KANSAS, Plaintiff
v.
States of NEBRASKA and Colorado.
No. 126, Orig.
Supreme Court of the United States
Argued Oct. 14, 2014.
Decided Feb. 24, 2015.
John B. Draper, Special Assistant Attorney General, Draper & Draper LLC, Jeffrey J. Wechsler, Montgomery & Andrews, P.A., Santa Fe, NM, Derek Schmidt, Attorney General of Kansas, Stephen R. McAllister, Solicitor General of Kansas, Counsel of Record, Jeffrey A. Chanay, Deputy Attorney General, Christopher M. Grunewald, Assistant Attorney General, Burke W. Griggs, Special Assistant Attorney General, Bryan C. Clark, Assistant Solicitor General, Topeka, KS, for Petitioner.
John W. Suthers, Attorney General of Colorado, Daniel D. Domenico, Solicitor General, Scott Steinbrecher, Assistant Attorney General, Colorado Department of Law, Counsel of Record, Denver, CO, for Respondent.
Jon Bruning, Attorney General of Nebraska, David D. Cookson, Chief Deputy Attorney General, Justin D. Lavene, Assistant Attorney General, Counsel of Record, Office of the Attorney General, Donald G. Blankenau, Thomas R. Wilmoth, Special Assistant Attorneys General, Blankenau Wilmoth Jarecke LLP, Lincoln, NE, for Respondent.
Steve N. Six, Attorney General of Kansas, John B. Draper, Counsel of Record, Montgomery & Andrews, P.A., Santa Fe, NM, for Petitioner.
Vincent L. McKusick, Special Master, Portland, ME, for Final Report of the Special Master with Certificate of Adoption of RRCA Groundwater Model.
John W. Suthers, Attorney General of Colorado, Daniel D. Domenico, Solicitor General, Peter J. Ampe, First Assistant Attorney General, Autumn Bernhardt, Assistant Attorney General, Federal and Interstate Water Unit, Natural Resources and Environment Section, State of Colorado, Office of the Attorney General Denver, CO, for Respondents.
Carla J. Stovall, Attorney General of Kansas, John W. Campbell, Chief Deputy Attorney General, John M. Cassidy, Assistant Attorney General, Leland E. Rolfs, Special Assistant Attorney General, John B. Draper, Counsel of Record, Special Assistant Attorney General, Andrew S. Montgomery, Montgomery & Andrews, P.A., Santa Fe, NM, for Petitioner.
Don Stenberg, Attorney General of Nebraska, David D. Cookson, Assistant Attorney General, Counsel of Record, Lincoln, NE, Bartholomew L. McLeay, Special Assistant Attorney General, Omaha, NE, for Respondents.
Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Felicity Hannay, Deputy Attorney General, Wendy Weiss, First Assistant Attorney General, Alexandra L. Davis, Assistant Attorney General, Natural Resources and Environment Section, Attorneys for State of Colorado, Denver, CO, for Respondents.
Don Stenberg, Attorney General of Nebraska, Marie Pawol, Assistant Attorney General, Counsel of Record, Lincoln, NE, Bartholomew L. McLeay, Special Assistant Attorney General, Omaha, NE, for Respondents.
Don Stenberg, Attorney General of Nebraska, for Respondents.
Opinion
Justice KAGANdelivered the opinion of the Court.
For the second time in little more than a decade, Kansas and Nebraska ask this Court to settle a dispute over the States'
rights to the waters of the Republican River Basin, as set out in an interstate compact. The first round of litigation ended with a settlement agreement designed to elaborate on, and promote future compliance with, the Compact's terms. The States now bring new claims against each other arising from the implementation of that settlement. Kansas seeks exceptional relief-both partial disgorgement of gains and an injunction-for Nebraska's conceded overconsumption of water. For its part, Nebraska requests amendment of a technical appendix to the settlement, so that allocations of water will faithfully reflect the parties' intent as expressed in both the body of that agreement and the Compact itself. We referred the case to a Special Master and now accept his recommendations as to appropriate equitable remedies: for Kansas, partial disgorgement but no injunction; and for Nebraska, reform of the appendix.
I
The Republican River originates in Colorado; crosses the northwestern corner of Kansas into Nebraska; flows through much of southwestern Nebraska; and finally cuts back into northern Kansas. Along with its many tributaries, the river drains a 24,900-square-mile watershed, called the Republican River Basin. The Basin contains substantial farmland, producing (among other things) wheat and corn.
During the Dust Bowl of the 1930's, the Republican River Basin experienced an extended drought, interrupted once by a deadly flood. In response, the Federal Government proposed constructing reservoirs in the Basin to control flooding, as well as undertaking an array of irrigation projects to disperse the stored water. But the Government insisted that the three States of the Basin first agree to an allocation of its water resources. As a result of that prodding, the States negotiated and ratified the Republican River Compact; and in 1943, as required under the Constitution, Art. I, § 10, cl. 3, Congress approved that agreement. By act of Congress, the Compact thus became federal law. See Act of May 26, 1943, ch. 104, 57 Stat. 86.
The Compact apportions among the three States the "virgin water supply originating in"-and, as we will later discuss, originating onlyin-the Republican River Basin. Compact Art. III; see infra,at 1059 - 1064. "Virgin water supply," as used in the Compact, means "the water supply within the Basin," in both the River and its tributaries, "undepleted by the activities of man." Compact Art. II. The Compact gives each State a set share of that supply-roughly, 49% to Nebraska, 40% to Kansas, and 11% to Colorado-for any "beneficial consumptive use." Id.,Art. IV; see Art. II (defining that term to mean "that use by which the water supply of the Basin is consumed through the activities of man"). In addition, the Compact charges the chief water official of each State with responsibility to jointly administer the agreement. See id.,Art. IX. Pursuant to that provision, the States created the Republican River Compact Administration (RRCA). The RRCA's chief task is to calculate the Basin's annual virgin water supply by measuring stream flow throughout the area, and to determine (retrospectively) whether each State's use of that water has stayed within its allocation.
All was smooth sailing for decades, until Kansas complained to this Court about Nebraska's increased pumping of groundwater, resulting from that State's construction of "thousands of wells hydraulically connected to the Republican River and its tributaries." Bill of Complaint, O.T. 1997, No. 126, Orig., p. 5 (May 26, 1998). Kansas contended that such activity was subject to the Compact: To the extent groundwater pumping depleted stream flow in the Basin, it counted against the pumping State's annual allotment of water.Nebraska maintained, to the contrary, that groundwater pumping fell outside the Compact's scope, even if that activity diminished stream flow in the area. A Special Master we appointed favored Kansas's interpretation of the Compact; we summarily agreed, and recommitted the case to him for further proceedings. See Kansas v. Nebraska,530 U.S. 1272, 120 S.Ct. 2764, 147 L.Ed.2d 1003 (2000). The States then entered into negotiations, aimed primarily at determining how best to measure, and reflect in Compact accounting, the depletion of the Basin's stream flow due to groundwater pumping. During those discussions, the States also addressed a range of other matters affecting Compact administration. The talks bore fruit in 2002, when the States signed the Final Settlement Stipulation (Settlement).
The Settlement established detailed mechanisms to promote compliance with the Compact's terms. The States agreed that the Settlement was not "intended to, nor could [it], change [their] respective rights and obligations under the Compact." Settlement § I(D). Rather, the agreement aimed to accurately measure the supply and use of the Basin's water, and to assist the States in staying within their prescribed limits. To smooth out year-to-year fluctuations and otherwise facilitate compliance, the Settlement based all Compact accounting on 5-year running averages, reduced to 2-year averages in "water-short" periods. Id.,§§ IV(D), V(B). That change gave each State a chance to compensate for one (or more) year's overuse with another (or more) year's underuse before exceeding its allocation. The Settlement further provided, in line with this Court's decision, that groundwater pumping would count as part of a State's consumption to the extent it depleted the Basin's stream flow. An appendix to the agreement called the "Accounting Procedures" described how a later-developed "Groundwater Model" (essentially, a mass of computer code) would perform those computations. Id.,App. C; id.,App. J1. And finally, the Settlement made clear, in accordance with the Compact, that a State's use of "imported water"-that is, water farmers bring into the area (usually for irrigation) that eventually seeps into the Republican River-would not count toward the State's allocation, because it did not originate in the Basin. Id., §§ II, IV(F). Once again, the Settlement identified the Accounting Procedures and Groundwater Model as the tools to calculate (so as to exclude) that consumption.
But there were more rapids ahead: By 2007, Kansas and Nebraska each had complaints about how the Settlement was working. Kansas protested that in the 2005-2006 accounting period-the first for which the Settlement held States responsible-Nebraska had substantially exceeded its allocation of water. Nebraska, for its part, maintained that the Accounting Procedures and Groundwater Model were charging the State for use of imported water-specifically, for water originating in the Platte River Basin. The States brought those disputes to the RRCA and then to non-binding arbitration, in accordance with the Settlement's dispute resolution provisions. After failing to resolve the disagreements in those forums, Kansas sought redress in this Court, petitioning for both monetary and injunctive relief. We referred the case to a Special Master to consider Kansas's claims. See 563 U.S. ----, 131 S.Ct. 378, 178 L.Ed.2d 14 (2011). In that proceeding, Nebraska asserted a counterclaim requesting a modification of the Accounting Procedures to ensure that its use of Platte River water would not count toward its Compact allocation.
After two years of conducting hearings, receiving evidence, and entertaining legal arguments, the Special Master issued his report and recommendations. The Master concluded that Nebraska had "knowingly failed" to comply with the Compact in the 2005-2006 accounting period, by consuming 70,869 acre-feet of water in excess of its prescribed share.Report 112. To remedy that breach, the Master proposed awarding Kansas $3.7 million for its loss, and another $1.8 million in partial disgorgement of Nebraska's still greater gains. The Master, however, thought that an injunction against Nebraska was not warranted. In addition, the Master recommended reforming the Accounting Procedures in line with Nebraska's request, to ensure that the State would not be charged with using Platte River water.
Kansas and Nebraska each filed exceptions in this Court to parts of the Special Master's report.Nebraska objects to the Master's finding of a "knowing" breach and his call for partial disgorgement of its gains. Kansas asserts that the Master should have recommended both a larger disgorgement award and injunctive relief; the State also objects to his proposed change to the Accounting Procedures. In reviewing those claims, this Court gives the Special Master's factual findings "respect and a tacit presumption of correctness." Colorado v. New Mexico,467 U.S. 310, 317, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984). But we conduct an "independent review of the record," and assume "the ultimate responsibility for deciding" all matters. Ibid.Having carried out that careful review, we now overrule all exceptions and adopt the Master's recommendations.
II
The Constitution gives this Court original jurisdiction to hear suits between the States. See Art. III, § 2. Proceedings under that grant of jurisdiction are "basically equitable in nature." Ohio v. Kentucky,410 U.S. 641, 648, 93 S.Ct. 1178, 35 L.Ed.2d 560 (1973). When the Court exercises its original jurisdiction over a controversy between two States, it serves "as a substitute for the diplomatic settlement of controversies between sovereigns and a possible resort to force." North Dakota v. Minnesota,263 U.S. 365, 372-373, 44 S.Ct. 138, 68 L.Ed. 342 (1923). That role significantly "differ[s] from" the one the Court undertakes "in suits between private parties." Id.,at 372, 44 S.Ct. 138; see Frankfurter & Landis, The Compact Clause of the Constitution-A Study in Interstate Adjustments, 34 Yale L.J. 685, 705 (1925)(When a "controversy concerns two States we are at once in a world wholly different from that of a law-suit between John Doe and Richard Roe over the metes and bounds of Blackacre"). In this singular sphere, "the court may regulate and mould the process it uses in such a manner as in its judgment will best promote the purposes of justice." Kentucky v. Dennison,24 How. 66, 98, 16 L.Ed. 717 (1861).
Two particular features of this interstate controversy further distinguish it from a run-of-the-mill private suit and highlight the essentially equitable character of our charge. The first relates to the subject matter of the Compact and Settlement: rights to an interstate waterway. The second concerns the Compact's status as not just an agreement, but a federal law. Before proceeding to the merits of this dispute, we say a few words about each.
This Court has recognized for more than a century its inherent authority, as part of the Constitution's grant of original jurisdiction, to equitably apportion interstate streams between States. In Kansas v. Colorado,185 U.S. 125, 145, 22 S.Ct. 552, 46 L.Ed. 838 (1902), we confronted a simple consequence of geography: An upstream State can appropriate all water from a river, thus "wholly depriv[ing]" a downstream State "of the benefit of water" that "by nature" would flow into its territory. In such a circumstance, the downstream State lacks the sovereign's usual power to respond-the capacity to "make war[,]... grant letters of marque and reprisal," or even enter into agreements without the consent of Congress. Id.,at 143, 22 S.Ct. 552(internal quotation marks omitted). "Bound hand and foot by the prohibitions of the Constitution,... a resort to the judicial power is the only means left" for stopping an inequitable taking of water. Id.,at 144, 22 S.Ct. 552(quoting Rhode Island v. Massachusetts,12 Pet. 657, 726, 9 L.Ed. 1233 (1838)).
This Court's authority to apportion interstate streams encourages States to enter into compacts with each other. When the division of water is not "left to the pleasure" of the upstream State, but States instead "know[ ] that some tribunal can decide on the right," then "controversies will [probably] be settled by compact." Kansas v. Colorado,185 U.S., at 144, 22 S.Ct. 552. And that, of course, is what happened here: Kansas and Nebraska negotiated a compact to divide the waters of the Republican River and its tributaries. Our role thus shifts: It is now to declare rights under the Compact and enforce its terms. See Texas v. New Mexico,462 U.S. 554, 567, 103 S.Ct. 2558, 77 L.Ed.2d 1 (1983).
But in doing so, we remain aware that the States bargained for those rights in the shadow of our equitable apportionment power-that is, our capacity to prevent one State from taking advantage of another. Each State's "right to invoke the original jurisdiction of this Court [is] an important part of the context" in which any compact is made. Id.,at 569, 103 S.Ct. 2558. And it is "difficult to conceive" that a downstream State "would trade away its right" to our equitable apportionment if, under such an agreement, an upstream State could avoid its obligations or otherwise continue overreaching. Ibid.Accordingly, our enforcement authority includes the ability to provide the remedies necessary to prevent abuse. We may invoke equitable principles, so long as consistent with the compact itself, to devise "fair... solution[s]" to the state-parties' disputes and provide effective relief for their violations. Texas v. New Mexico,482 U.S. 124, 134, 107 S.Ct. 2279, 96 L.Ed.2d 105 (1987)(supplying an "additional enforcement mechanism" to ensure an upstream State's compliance with a compact).
And that remedial authority gains still greater force because the Compact, having received Congress's blessing, counts as federal law. See Cuyler v. Adams,449 U.S. 433, 438, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981)("[C]ongressional consent transforms an interstate compact... into a law of the United States"). Of course, that legal status underscores a limit on our enforcement power: We may not "order relief inconsistent with [a compact's] express terms." Texas v. New Mexico,462 U.S., at 564, 103 S.Ct. 2558. But within those limits, the Court may exercise its full authority to remedy violations of and promote compliance with the agreement, so as to give complete effect to public law. As we have previously put the point: When federal law is at issue and "the public interest is involved," a federal court's "equitable powers assume an even broader and more flexible character than when only a private controversy is at stake." Porter v. Warner Holding Co.,328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946); see Virginian R. Co. v. Railway Employees,300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed. 789 (1937)("Courts of equity may, and frequently do, go much farther" to give "relief in furtherance of the public interest than they are accustomed to go when only private interests are involved").In exercising our jurisdiction, we may "mould each decree to the necessities of the particular case" and "accord full justice" to all parties.Porter,328 U.S., at 398, 66 S.Ct. 1086(internal quotation marks omitted); see Kentucky v. Dennison,65 U.S., at 98. These principles inform our consideration of the dispute before us.
III
We first address Nebraska's breach of the Compact and Settlement and the remedies appropriate to that violation. Both parties assent to the Special Master's finding that in 2005-2006 Nebraska exceeded its allocation of water by 70,869 acre-feet-about 17% more than its proper share. See Report 88-89; App. B to Reply Brief for Kansas. They similarly agree that this overconsumption resulted in a $3.7 million loss to Kansas; and Nebraska has agreed to pay those damages. See Reply Brief for Kansas 9, 55; Brief for Nebraska 7. But the parties dispute whether Nebraska's conduct warrants additional relief. The Master determined that Nebraska "knowingly exposed Kansas to a substantial risk" of breach, and so "knowingly failed" to comply with the Compact. Report 130, 112; see supra,at 1050 - 1051. Based in part on that finding, he recommended disgorgement of $1.8 million, which he described as "a small portion of the amount by which Nebraska's gain exceeds Kansas's loss." Report 179. But he declined to grant Kansas's request for injunctive relief against Nebraska. See id.,at 180-186. As noted previously, see supra,at 1050 - 1051, each party finds something to dislike in the Master's handling of this issue: Nebraska contests his finding of a "knowing" Compact violation and his view that disgorgement is appropriate; Kansas wants a larger disgorgement award and an injunction regulating Nebraska's future conduct. We address those exceptions in turn.
A
1
When they entered into the Settlement in 2002, the States understood that Nebraska would have to significantly reduce its consumption of Republican River water. See Report 106. The Settlement, after all, charged Nebraska for its depletion of the Basin's stream flow due to groundwater pumping-an amount the State had not previously counted toward its allotment. See supra,at 1049 - 1050. Nebraska did not have to achieve all that reduction in the next year: The Settlement's adoption of multi-year averages to measure consumption allowed the State some time-how much depended on whether and when "water-short" conditions existed-to come into compliance. See Settlement §§ IV(D), V(B)(2)(e)(i), App. B; supra,at 1050. As it turned out, the area experienced a drought in 2006; accordingly, Nebraska first needed to demonstrate compliance in that year, based on the State's average consumption of water in 2005 and 2006.And at that initial compliance check, despite having enjoyed several years to prepare, Nebraska came up markedly short.
Nebraska contends, contrary to the Master's finding, that it could not have anticipated breaching the Compact in those years. By its account, the State took "persistent and earnest"-indeed, "extraordinary"-steps to comply with the agreement, including amending its water law to reduce groundwater pumping. Brief for Nebraska 9, 17. And Nebraska could not have foreseen (or so it claims) that those measures would prove inadequate. First, Nebraska avers, drought conditions between 2002 and 2006 reduced the State's yearly allotments to historically low levels; the Master was thus "unfair to suggest Nebraska should have anticipated what never before was known." Id.,at 17. And second, Nebraska stresses, the RRCA determines each State's use of water only retrospectively, calculating each spring what a State consumed the year before; hence, Nebraska "could not have known" that it was out of compliance in 2006 "until early 2007-when it was already too late." Id.,at 18; see supra,at 1049 - 1050.
But that argument does not hold water: Rather, as the Special Master found, Nebraska failed to put in place adequate mechanisms for staying within its allotment in the face of a known substantial risk that it would otherwise violate Kansas's rights. See Report 105-112, 130. As an initial matter, the State's efforts to reduce its use of Republican River water came at a snail-like pace. The Nebraska Legislature waited a year and a half after signing the Settlement to amend the State's water law. See § 55, 2004 Neb. Laws p. 352, codified at Neb.Rev.Stat. 46-715. And the fix the legislature adopted-the development of regional water management plans meant to decrease groundwater pumping-did not go into effect for still another year. Nebraska thus wasted the time following the Settlement-a crucial period to begin bringing down the State's consumption. Indeed, the State's overuse of Republican River water actually rose significantly from 2003 through 2005, making compliance at the eventual day of reckoning ever more difficult to achieve. See Report 108-109.And to make matters worse, Nebraska knew that decreasing pumping does not instantly boost stream flow: A time lag, of as much as a year, exists between the one and the other. See id.,at 106. So Nebraska's several-year delay in taking any corrective action foreseeably raised the risk that the State would breach the Compact.
Still more important, what was too late was also too little. The water management plans finally adopted in 2005 called for only a 5% reduction in groundwater pumping, although no evidence suggested that would suffice. The testimony presented to the Special Master gave not a hint that the state and local officials charged with formulating those plans had conducted a serious appraisal of how much change would be necessary. See id.,at 107-108. And the State had created no way to enforce even the paltry goal the plans set. The Nebraska Legislature chose to leave operational control of water use in the hands of district boards consisting primarily of irrigators, who are among the immediate beneficiaries of pumping. No sanctions or other mechanisms held those local bodies to account if they failed to meet the plans' benchmark. They bore no legal responsibility for complying with the Compact, and assumed no share of the penalties the State would pay for violations. See id.,at 110-111. Given such a dearth of tools or incentives to achieve compliance, the wonder is only that Nebraska did not still further exceed its allotment.
Nor do Nebraska's excuses change our view of its misbehavior. True enough, the years following the Settlement were exceptionally arid. But the Compact and Settlement (unsurprisingly) contemplate wet and dry years alike. By contrast, Nebraska's plans could have brought it into compliance only if the Basin had received a stretch of copious rainfall. See id.,at 109-110. And Nebraska cannot take refuge in the timing of the RRCA's calculations. By the time the compliance check of 2006 loomed, Nebraska knew that it had exceeded its allotment (by an ever greater margin) in each of the three previous years. As Nebraska's own witnesses informed the Special Master, they "could clearly see" by the beginning of 2006 "that [the State] had not done enough" to come into compliance. Id.,at 109 (quoting Tr. 1333 (Aug. 21, 2012)). Indeed, in that year, Nebraska began purchasing its farmers' rights to surface water in order to mitigate its anticipated breach. But that last-minute effort, in the Master's words, "fell woefully short"-as at that point could only have been expected. Report 109. From the outset of the Settlement through 2006, Nebraska headed-absent the luckiest of circumstances-straight toward a Compact violation.
For these reasons, we agree with the Master's conclusion that Nebraska "knowingly exposed Kansas to a substantial risk" of receiving less water than the Compact provided, and so "knowingly failed" to comply with the obligations that agreement imposed. Id.,at 130, 112. In the early years of the Settlement, as the Master explained, Nebraska's compliance efforts were not only inadequate, but also "reluctant," showing a disinclination "to take [the] firm action" necessary "to meet the challenges of foreseeably varying conditions in the Basin." Id.,at 105. Or said another way, Nebraska recklessly gambled with Kansas's rights, consciously disregarding a substantial probability that its actions would deprive Kansas of the water to which it was entitled. See Tr. 1870 (Aug. 23, 2012) (Master's statement that Nebraska showed "reckless indifference as to compliance back in '05 and '06").
2
After determining that Kansas lost $3.7 million from Nebraska's breach, the Special Master considered the case for an additional monetary award. Based on detailed evidence, not contested here, he concluded that an acre-foot of water is substantially more valuable on farmland in Nebraska than in Kansas. That meant Nebraska's reward for breaching the Compact was "much larger than Kansas' loss, likely by more than several multiples." Report 178. Given the circumstances, the Master thought that Nebraska should have to disgorge part of that additional gain, to the tune of $1.8 million. In making that recommendation, he relied on his finding-which we have just affirmed-of Nebraska's culpability. See id.,at 130. He also highlighted this Court's broad remedial powers in compact litigation, noting that such cases involve not private parties' private quarrels, but States' clashes over federal law. See id.,at 131, 135; supra,at 1051 - 1053.
Nebraska (along with the dissent) opposes the Special Master's disgorgement proposal on the ground that the State did not "deliberately act[ ]" to violate the Compact. Reply Brief for Nebraska 33; see post,at 1051 - 1052. Relying on private contract law, Nebraska cites a Restatement provision declaring that a court may award disgorgement in certain cases in which "a deliberate breach of contract results in profit to the defaulting promisor." Restatement (Third) of Restitution and Unjust Enrichment § 39(1) (2010)(Restatement); see Reply Brief for Nebraska 32. Nebraska then points out that the Master, even though finding a "knowing" exposure of Kansas to significant risk, rejected the idea that "Nebraska officials [had] deliberately set out to violate the Compact." Brief for Nebraska 16 (quoting Report 111). Accordingly, Nebraska concludes, no disgorgement is warranted.
But that argument fails to come to terms with what the Master properly understood as the wrongful nature of Nebraska's conduct. True enough, as the Master said, that Nebraska did not purposefully set out to breach the Compact. But still, as he also found, the State "knowingly exposed Kansas to a substantial risk" of breach, and blithely proceeded. Report 130. In some areas of the law and for certain purposes, the distinction between purposefully invading and recklessly disregarding another's rights makes no difference. See Bullock v. BankChampaign, N.A.,569 U.S. ----, ----, 133 S.Ct. 1754, 1759, 185 L.Ed.2d 922 (2013)("We include as intentional... reckless conduct" of the kind that the law "often treats as the equivalent"); Ernst & Ernst v. Hochfelder,425 U.S. 185, 193-194, n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976)("[R]ecklessness is [sometimes] considered to be a form of intentional conduct for purposes of imposing liability"). And indeed, the very Restatement Nebraska relies on treats the two similarly. It assimilates "deliberate[ness]" to "conscious wrongdoing," which it defines as acting (as Nebraska did) "despite a known risk that the conduct... violates [another's] rights." Restatement § 39, Comment f; id.,§ 51(3). Conversely, the Restatement distinguishes "deliberate[ness]" from behavior (not akin to Nebraska's) amounting to mere "inadvertence, negligence, or unsuccessful attempt at performance." Id.,§ 39, Comment f.
And whatever is true of a private contract action, the case for disgorgement becomes still stronger when one State gambles with another State's rights to a scarce natural resource. From the time this Court began to apportion interstate rivers, it has recognized part of its role as guarding against upstream States' inequitable takings of water. And as we have noted, that concern persists even after States enter into a compact: This Court may then exercise remedial authority to ensure compliance with the compact's terms-thus preventing a geographically favored State from appropriating more than its share of a river. See supra,at 1052. Indeed, the formation of such a compact provides this Court with enhanced remedial power because, as we have described, the agreement is also an Act of Congress, and its breach a violation of federal law. See supra,at 1052 - 1053; Porter,328 U.S. 395, 66 S.Ct. 1086(exercising equitable power to disgorge profits gained from violating a federal statute). Consistent with those principles, we have stated that awarding actual damages for a compact's infringement may be inadequate, because that remedy alone "would permit [an upstream State] to ignore its obligation to deliver water as long as it is willing" to pay that amount. Texas v. New Mexico,482 U.S., at 132, 107 S.Ct. 2279. And as the Solicitor General noted in argument here, "[i]t is important that water flows down the river, not just money." Tr. of Oral Arg. 24. Accordingly, this Court may order disgorgement of gains, if needed to stabilize a compact and deter future breaches, when a State has demonstrated reckless disregard of another, more vulnerable State's rights under that instrument.
Assessed in this light, a disgorgement order constitutes a "fair and equitable" remedy for Nebraska's breach. Texas v. New Mexico, 482 U.S., at 134, 107 S.Ct. 2279. "Possessing the privilege of being upstream," Nebraska can (physically, though not legally) drain all the water it wants from the Republican River. Report 130. And the higher value of water on Nebraska's farmland than on Kansas's means that Nebraska can take water that under the Compact should go to Kansas, pay Kansas actual damages, and still come out ahead. That is nearly a recipe for breach-for an upstream State to refuse to deliver to its downstream neighbor the water to which the latter is entitled. And through 2006, Nebraska took full advantage of its favorable position, eschewing steps that would effectively control groundwater pumping and thus exceeding its allotment. In such circumstances, a disgorgement award appropriately reminds Nebraska of its legal obligations, deters future violations, and promotes the Compact's successful administration. See Porter,328 U.S., at 400, 66 S.Ct. 1086("Future compliance may be more definitely assured if one is compelled to restore one's illegal gains").We thus reject Nebraska's exception to the Master's proposed remedy.
B
Kansas assails the Special Master's recommended disgorgement award from the other direction, claiming that it is too low to ensure Nebraska's future compliance. See Brief for Kansas 55-59. Notably, Kansas does not insist on all of Nebraska's gain. It recognizes the difficulty of ascertaining that figure, given the evidence the parties presented. See id.,at 56; see also Report 177-178. And still more important, it "agrees" with the Master's view that the Court should select a "fair point on th[e] spectrum" between no profits and full profits, based on the totality of facts and interests in the case. Brief for Kansas 57 (quoting Report 135); see Sur-Reply Brief for Kansas 5. In setting that point, however, Kansas comes up with a higher number-or actually, a trio of them. The State first asks us to award "treble damages of $11.1 million," then suggests that we can go "up to roughly $25 million," and finally proposes a "1:1 loss-to-disgorgement ratio," which means $3.7 million of Nebraska's gains. Brief for Kansas 57; Sur-Reply Brief for Kansas 5, 7.
We prefer to stick with the Master's single number. As an initial matter, we agree with both the Master and Kansas that disgorgement need not be all or nothing. See, e.g.,1 D. Dobbs, Law of Remedies § 2.4(1), p. 92 (2d ed. 1993) ("Balancing of equities and hardships may lead the court to grant some equitable relief but not" the full measure requested); Restatement § 39, Comment i; id.,§ 50, Comment a; National Security Systems, Inc. v. Iola,700 F.3d 65, 80-81, 101-102 (C.A.3 2012). In exercising our original jurisdiction, this Court recognizes that "flexibility [is] inherent in equitable remedies," Brown v. Plata,563 U.S. ----, ----, 131 S.Ct. 1910, 1944, 179 L.Ed.2d 969 (2011)(quoting Hutto v. Finney,437 U.S. 678, 687, n. 9, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)), and awards them "
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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sc_casedisposition
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C
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
LOCAL LODGE NO. 1424, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, et al. v. NATIONAL LABOR RELATIONS BOARD.
No. 44.
Argued January 11, 1960.
Decided April 25, 1960.
Bernard Dunau argued the cause for petitioners. With him on the brief were Plato E. Papps, Louis P. Poulton and Frank L. Gallucci.
Norton J. Gome argued the cause for respondent. On the brief were Solicitor General Rankin, Stuart Roth-man, Thomas J. McDermott and Dominick L. Manoli.
J. Albert Woll, Theodore J. St. Antoine and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations, as amicus curiae, in support of petitioners.
Mr. Justice Harlan
delivered the opinion of the Court.
The question we decide in this case is whether unfair labor practice complaints, whose charges against these petitioners were sustained by the National Labor Relations Board, were barred by the six-month statute of limitations contained in § 10 (b) of the National Labor Relations Act, as amended, 61 Stat. 146, 29 U. S. C. § 160 (b). That section reads in pertinent part:
“Provided... no complaint shall issue based upon any unfair labor practice occurring more than six months 'prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made...
On August 10, 1954, petitioners Bryan Manufacturing Company and the International Association of Machinists, AFL, entered into a collective bargaining agreement for a unit of Bryan’s employees. The agreement, as later supplemented in certain respects not material to this litigation, contained the conventional provisions, of which two are relevant here: the “recognition” clause, by which the Union was recognized as “the sole and exclusive bargaining agency for all employees” in the unit; and the “union security” clause, by which all employees were required, subject to a 45-day grace period, to become and remain members of the- Union. On August 30, 1955, a new agreement was entered into, with Bryan, the Union, and petitioner Local Lodge No. 1424, IAM, as signatories, replacing the old agreement and applying additionally to employees at a newly opened plant as well as to those covered by the original agreement.
When the original agreement was executed on August 10, 1954, the Union did not represent a majority of the employees covered by it. Under § § 7 and 8 of the Act the Board has evolved the principle, not drawn in question here, that it is an unfair labor practice for an employer and a labor organization to enter into a collective bargaining agreement which contains a union security clause, if at the time of original execution the union does not represent a majority of the employees in the unit. The maintaining of such an agreement in force is a continuing violation of the Act, and the “majority status” of the union at any subsequent date — including the date of execution of any renewals of the original agreement — is immaterial, for it is presumed that subsequent acquisition of a majority status is attributable to the earlier unlawful assistance received from the original agreement.
In June and August 1955, 10 months and 12 months after the execution of the original agreement, charges were filed with the Board and served upon the petitioners, alleging the Union’s lack of majority status at the time of execution and the consequent illegality of the continued enforcement of the agreement. Complaints were thereafter issued by the Board’s General Counsel against the Union and the Company. Petitioners contended before the Board that the complaints were barred by the limitations proviso of § 10 (b), set forth above. The Board, two members dissenting, held that the complaints were not barred by limitations, 119 N. L. R. B. 502, and the Court of Appeals affirmed, one judge dissenting. 105 U. S. App. D. C. 102, 264 F. 2d 575. We granted cer-tiorari, 360 U. S. 916, because of the importance of the question in the proper administration of the National Labor Relations Act. For reasons given in this opinion we hold that the complaints against these petitioners are barred by time.
We first note the opposing contentions of the parties. The Board starts with the premise that a collective bargaining agreement which contains a union security clause valid on its face, but which was entered into when the Union did not have a majority status, gives rise to two independent unfair labor practices, one being the execution of the agreement, the other arising from its continued enforcement. Conceding that a complaint predicated on the execution of the agreement here challenged was barred by limitations, the Board contends that its complaint was nonetheless timely since it was “based upon” the parties’ continued enforcement, within the period of limitations, of the union security clause. It is then said that even though the former was itself time-barred, the unlawful execution of the agreement was nevertheless “relevant in determining whether conduct within the 6-month period was unlawful,” 119 N. L. R. B., at 504; and that evidence as to it was admissible because § 10 (b) is a statute of limitations, and not a rule of evidence.
On the other hand, petitioners contend that, standing alone, the union security clause and its enforcement were wholly innocent; that they were tainted only by virtue of the original unlawful execution of the agreement; and that since a complaint based upon that unfair labor practice was barred by limitations, that event itself could not be utilized to infuse with illegality the otherwise legal union security clause or its enforcement. They say, in short, that to apply in this situation the doctrine that § 10 (b) is a statute of limitations, and not a rule of evidence, is to circumvent the purposes of the section, and that acceptance of the Board’s position would mean that the statute of limitations would never run in a case of this kind. We think petitioners’ position represents the correct view of the matter.
It is doubtless true that § 10 (b) does not prevent all use of evidence relating to.events transpiring more than six months before the filing and service of an unfair labor practice charge. However, in applying rules of evidence as to the admissibility of past events, due regard for the purposes of § 10 (b) requires that two different kinds of situations be distinguished. The first is one where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose § 10 (b) ordinarily does not bar such evidentiary use of anterior events. The second situation is that where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice. There the use of the earlier unfair labor practice is not merely “eviden-tiary,” since it does not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with illegality that which was otherwise lawful. And where a complaint based upon that earlier event is time-barred, to permit the event itself to be so used in effect results in reviving a legally defunct unfair labor practice.
The situation before us is of this latter variety, for the entire foundation of the unfair labor practice charged was the Union’s time-barred lack of majority status when the original collective bargaining agreement was signed. In the absence of that fact enforcement of this otherwise valid union security clause was wholly benign. The Trial Examiner, whose findings were adopted by the Board, observed: Where, as here, a collective bargaining agreement and its enforcement are both perfectly lawful on the face of things, and an unfair labor practice cannot be made out except by reliance on the fact of the agreement’s original unlawful execution, an event which, because of limitations, cannot itself be made the subject of an unfair labor practice complaint, we. think that permitting resort to the principle that § 10 (b) is not a rule of evidence, in order to convert what is otherwise legal into something illegal, would vitiate the policies underlying that section. These policies are to bar litigation over past events “after records have been destroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and confused,” H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 40, and of course to stabilize existing bargaining relationships.
“The General Counsel concedes that the 6-month limitation of Section 10 (b) of the Act precludes currently finding the execution of the 1954 agreement to be an unfair labor practice, and also precludes currently finding its enfor cement to' be an unfair labor practice... at any time prior to the... periods beginning 6 months prior to the... charges.... However, this concession in no way detracts from the crucial nature of the earlier events, because at the core of the General Counsel’s contentions as to all of the unfair labor practices is his fundamental position that, because of the circumstances prevailing when made, the original union-security agreement of 1954 has never been valid or legal, since it has never met certain overriding requirements of Section 8 (a) (3) of the Act.” 119 N. L. R. B., at 530. (Emphasis added, except as indicated.)
Our view of the matter is lent support by the attitude of the Board itself, whose previous decisions, albeit not always with unanimity among its members or even perhaps with perfect consistency, have recognized that evidentiary rules as to past events must be regarded differently in the two situations we have already depicted. Compare, e. g., Potlatch Forests, Inc., 87 N. L. R. B. 1193, where evidence as to events during the barred period was used to illuminate current conduct claimed in itself to be an unfair labor practice, with Bowen Products Corp., 113 N. L. R. B. 731, and Greenville Cotton Oil Co., 92 N. L. R. B. 1033, aff’d sub nom. American Federation of Grain Millers, A. F. L. v. Labor Board, 197 F. 2d 451, where the gravamen of the unfair labor practice complained of lay in a fact or event occurring during the barred period.
Indeed, some Board cases have gone even further and held § 10 (b) a bar in circumstances when, although none of the material elements of the charge in a timely complaint need necessarily be proved through reference to the barred period — so that utilization of evidence from that period is ostensibly only for the purpose of giving color to what is involved in the complaint — yet the evidence in fact marshalled from within the six-month period is not substantial, and the merit of the allegations in the complaint is shown largely by reliance on the earlier events. See, e. g., News Printing Co., 116 N. L. R. B. 210, 212; Universal Oil Products Co., 108 N. L. R. B. 68; Tennessee Knitting Mills, Inc., 88 N. L. R. B. 1103.
However, we express no view on the problem raised by such cases, for here we need not go beyond saying that a finding of violation which is inescapably grounded on events predating the limitations period is directly at odds with the purposes of the § 10 (b) proviso.
The applicability of these principles cannot be avoided here by invoking the doctrine of continuing violation. It may be conceded that the continued enforcement, as well as the execution, of this collective bargaining agreement constitutes an unfair labor practice, and that these are two logically separate violations, independent in the sense that they can be described in discrete terms. Nevertheless, the vice in the enforcement of this agreement is manifestly not independent of the legality of its execution, as would be the case, for example, with an agreement invalid on its face or with one validly executed, but unlawfully administered. As the dissenting Board members in this case recognized, in dealing with an agreement claimed to be void by reason of the union's lack of majority status at the time of its execution,
“... the circumstances which cause the agreement to be invalid existed only at the point in time in the past when the agreement was executed and are not thereafter repeated. For this reason, therefore, the continuing invalidity of the agreement is directly related to and is based solely on its initial invalidity, and has no continuing independent basis.” 119 N. L. R. B., at 516.
In any real sense, then, the complaints in this case are “based upon” the unlawful execution of the agreement, for its enforcement, though continuing, is a continuing violation solely by reason of circumstances existing only at the date of execution. To justify reliance on those circumstances on the ground that the maintenance in effect of the agreement is a continuing violation is to support a lifting of the limitations bar by a characterization which becomes apt only when that bar has already been lifted. Put another way, if the § 10 (b) proviso is to be given effect, the enforcement, as distinguished from the execution, of such an agreement as this constitutes a suable unfair labor practice only for six months following the making of the agreement.
The Board's ruling is further sought to be supported on the ground that it did not rest on a formal finding that the.execution of the 1954 agreement constituted an unfair labor practice. The Court of Appeals, while stating that the Board could not draw “any legal conclusion with regard to events outside the statutory period,” distinguished the decision here as resting on the “mere existence [of the facts surrounding the making of the 1954 contract] rather than on ascribing legal significance to those facts standing alone.” 105 U. S. App. D. C., at 108, 264 F. 2d, at 581 (emphasis by the court). This distinction sacrifices the policy of the Act to procedural formalities. If, as is not disputable, the § 10 (b) limitation was prompted by “complaint that people were being brought to book upon stale charges,” Labor Board v. Pennwoven, Inc., 194 F. 2d 521, 524, it is a particular use of the pre-limitations facts or conduct at which the section is aimed, and it can hardly be thought relevant that the proscribed use has not been labeled as such. The applicability of the policy of § 10 (b) in the Grain Millers case, supra, where in the particular circumstances of that case, and not because of anything arising from § 10 (b), the challenged acts within the limitations period could not be condemned as unlawful without an express declaration that earlier conduct constituted an unfair labor practice (see note 12, ante), was not greater than it is here, where although there was no “finding” that execution of the agreement constituted an unfair labor practice, it is manifest that were that not in fact the case enforcement of the agreement would carry no taint of illegality. The availability of the repose sought to be assured by § 10 (b) cannot turn on the vagaries of any such hypertechnical distinctions, bearing no relation to the purpose of the legislation.
It is apparently not disputed that the Board’s position would withdraw virtually all limitations protection from collective bargaining agreements attacked on the ground asserted here. For, once the principle on which the decision below rests is accepted, so long as the contract— or any renewal thereof — is still in effect, the six-month period does not even begin to run. Cf. Bowen Products Corp., supra, at 732. In Lively Photos, Inc., 123 N. L. R. B. 1054, the Board unhesitatingly applied the doctrine of the case at bar to an attack upon an agreement executed more than three and one-half years prior to the filing of the charge. The cease-and-desist order entered in that case directed the severance of a bargaining relationship which had been initiated five years earlier. A doctrine which does such disservice to stability of bargaining relationships could be upheld, in light of the language and evident purpose of § 10 (b), only by a convincing showing that Congress did not intend that provision to be applied so as to bar attacks on collective agreements with unions lacking majority status unless brought within six months of their execution. Far from providing such a showing, the legislative history contains affirmative evidence that Congress was specifically advertent to the problem of agreements with minority unions, had previously been at pains to protect such agreements from belated attack, and manifested an intention, in enacting § 10 (b), not to withdraw that protection.
Four years prior to the enactment of the Taft-Hartley amendments, of which the § 10 (b) limitations proviso was one, Congress barred the Board from proceeding, under certain conditions not here relevant, in cases “arising over an agreement between management and labor which has been in existence for three months or longer without complaint being filed.” National Labor Relations Board Appropriation Act, 1944, 57 Stat. 515. This legislation was enacted with specific reference to agreements with minority unions, and was re-enacted in each succeeding session through 1947 At the time the Senate Committee on Labor and Public Welfare reported S. 1126 (the Senate version of the proposed legislation enacted as the Labor Management Relations Act, 1947), a rider to the appropriations bill for the fiscal year 1948 (H. R. 2700, 80th Cong., 1st Sess.) was pending before the Senate Appropriations Committee, having been previously reported by the House Appropriations Committee in language identical with that of its predecessors. The Labor Committee’s discussion of the proposed § 10 (b) amendment is illuminating:
“The principal substantive change in this section is a provision for a 6-month period of limitations upon the filing of charges. The Board itself by adopting a doctrine of laches has to some extent discouraged dilatory filing of charges, and a rider to the current appropriations bill (which if this amendment was adopted would no longer be necessary) contains a 3-month period of limitations with respect to certain kinds of unfair labor practices.” S. Rep. No. 105, 80th Cong., 1st Sess., p. 26. (Emphasis added.)
This language cannot be squared with an interpretation of § 10 (b) which would ascribe to Congress, in enacting for the first time a general limitations provision, a purpose to eliminate the then-existing all-embracing limitation specifically applicable to agreements with minority unions.
In sustaining the Board’s position, the Court of Appeals also relied on the public character of the right sought to be vindicated by the Board, and the limited scope of judicial review of Board determinations. Observing that “in interpreting, applying and administering a statute of limitations prescribed by Congress in this context [the field of labor relations], the Board — and the courts — are not confronted by precisely the same considerations as apply to statutes of limitations affecting the private rights of two individual litigants,” the Court reasoned that “[t]he Board may have thought that the interests of [employee] self determination outweighed otherwise important competing considerations of burying stale disputes.” 105 U. S. App. D. C., at 108-109, 264 F. 2d, at 581-582. We think this analysis inadmissible here, for the reason that the accommodation between these competing factors has already been made by Congress. It is a commonplace, but one too easily lost sight of, that labor legislation traditionally entails the adjustment and compromise of competing interests which in the abstract or from a purely partisan point of view may seem irreconcilable. The “policy of the Act” is embodied in the totality of that adjustment, and not necessarily in any single demand which may have figured, however weightily, in it. Cf. note 7, ante. It may be asserted, without fear of contradiction, that the interest in employee freedom of choice is one of those given large recognition by the Act as amended. But neither can one disregard the interest in “industrial peace which it is the overall purpose of the Act to secure.” Labor Board v. Childs Co., 195 F. 2d 617, 621-622 (concurring opinion of L. Hand, J.). Cf. Colgate Co. v. Labor Board, 338 U. S. 355, 362-363. As expositor of the national interest, Congress, in the judgment that a six-month limitations period did “not seem unreasonable,” H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 40, barred the Board from dealing with past conduct after that period had run, even at the expense of the vindication of statutory rights. “It is not necessary for us to justify the policy of Congress. It is enough that we find it in the statute. That policy cannot be defeated by the Board’s policy....” Colgate Co. v. Labor Board, supra, at 363. Cf. Southern S. S. Co. v. Labor Board, 316 U. S. 31, 47.
Reversed.
It was so found by the Board, and petitioners have not challenged that finding.
Section 7 (61 Stat. 140, 29 U. S. C. § 157) provides:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3).”
Section 8 (61 Stat. 140, as amended, 29 U. S. C. § 158) provides:
“(a) It shall be an unfair labor practice for an employer—
“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;
“(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it:....
“(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 Act, 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 section 8 (a) of this Act 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,... if such labor organization is the representative of the employees as provided in section 9 (a), in the appropriate collective-bargaining unit covered by such agreement when made;...
“(b) It shall be an unfair labor practice for a labor organization or its agents—
“(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7:...
“(2) to cause' or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3)....”
The same doctrine is applied to an agreement containing only a “recognition” clause making a union the exclusive bargaining agent -’for all employees in the unit covered by the agreement. See Bernhard-Altmann Texas Corp., 122 N. L. R. B. 1289; Charles W. Carter Co., 115 N. L. R. B. 251, 262; International Metal Products Co., 104 N. L. R. B. 1076; John B. Shriver Co., 103 N. L. R. B. 23, 38; and see the Trial Examiner’s discussion in the present case, 119 N. L. R: B. 502, 555, n. 98. The agreement now in question contained both a union security and a recognition clause, but for convenience we shall deal with the matter in terms of the union security clause alone.
See 119 N. L. R. B., at 546, 548.
The petition for certiorari also raised an issue as to the propriety of the relief ordered by the Board. Because of our view of the case it becomes unnecessary to reach that question.
The most frequently cited Board expression of this principle is that found in Axelson Mfg. Co., 88 N. L. R. B. 761, 766:
“As I interpret the statute however, Section 10 (b) enacts a statute of limitations and not a rule of evidence. It forbids the issuance of complaints and, consequently, findings of violation of the statute in conduct not within the 6 months’ period. But it does not, as I construe it, forbid the introduction of relevant evidence bearing on the issue as to whether a violation has occurred during the 6 months’ period. Events obscure, ambiguous, or even meaningless when viewed in isolation may, like the component parts of an equation, become clear, definitive, and informative when considered in relation to other action. Conduct, like language, takes its meaning from the circumstances in which it occurs. Congress can scarcely have intended that the Board, in the performance of its duty to decide the validity of conduct within the 6 months’ period, should ignore reliable, probative, and substantial evidence as to the meaning and the nature of the conduct. Had such been the intent, it seems reasonable to assume that it would have been stated.”
The Board, however, has developed certain limits on the applicability of this principle. See p. 421, post, and note 13.
It was the view of one member of the Board majority that a presumption of illegality should attend the enforcement of a union security clause, so that sufficient proof of violation results merely from a showing that such a clause is operative, thus putting on the parties to the agreement the burden to defend by proving compliance with the requirements of the proviso to § 8 (a) (3) of the Act, 61 Stat. 140, as amended, 29 U. S. C. § 158 (a) (3), see note 2, ante, including majority status at the time of execution. 119 N. L. R. B., at 510. While acceptance of this view would concededly support the result reached below, it was not adopted by the Board, as the concurring member acknowledged. Id., at 511. We too reject it. It rests on the mistaken judgment that the proviso to § 8 (a) (3) permits the inclusion of union security provisions “in derogation of the rights guaranteed employees in the definitive statement of national policy contained in Section 7,” id., at 510, and on the principle that, exoneration of certain types of union security clauses having been granted in a proviso, the burden of proving the proviso's applicability rests on him asserting it. The latter principle need not detain us; insights derived from syntactical analysis form a hazardous basis for the explication of major legislative enactments.. As to the argument drawn from § 7, it would be enough to note that that very provision is in terms limited by the scope of the § 8 (a) (3) proviso. (See note 2, ante.) More to the heart of the matter, it is the entire Act, and not merely one portion of it, which embodies “the definitive statement of national policy.” It is well known, and the legislative history of the 1947 Taft-Hartley amendments plainly shows, that § 8 (a) (3)— including its proviso — represented the Congressional response to the competing demands of employee freedom of choice and union security. Had Congress thought one or the other overriding, it would doubtless have found words adequate to express that judgment. It did not do so; it accommodated both interests, doubtless in a manner unsatisfactory to the extreme partisans of each, by drawing a line it thought reasonable. It is not for the administrators of the Congressional mandate to approach either side of that line grudgingly.
Emphasis here by the Trial Examiner.
These observations were accepted both by the Board and the Court of Appeals. 119 N. L. R. B., at 503-504; 105 U. S. App. D. C., at 106, 264 F. 2d, at 579. See also Lively Photos, Inc., 123 N. L. R. B. 1054.
The Examiner’s Report shows the pertinency of this statutory purpose in the present case. In his analysis of the evidence, he observed:
“It is evident that with many witnesses testifying as to numerous different matters, it would protract this report greatly to summarize all of the testimony, or to spell out fully the confusion and inconsistencies therein, much of which is not too surprising, in view of the fact that, with respect to the events of August 1954 [the events “at the core” of the allegations of illegality], there had been a lapse of almost 15 months before testimony was given in November 1955.” 119 N. L. R. B., at 529.
In that case, in explaining his consideration of “relevant evidence” antedating the six-month period, the Trial Examiner, whose report was confirmed by the Board, said: “The Respondent’s earlier conduct has been considered here merely for the purpose of bringing into clearer focus the conduct in issue. Even without such consideration, however, the allegations of discrimination would have been found amply supported by such undisputed record facts as bear directly upon the layoffs of [the employees involved within the six-month period].” 87 N. L. R. B., at 1211. See also Local 1418, International Longshoremen’s Assn., 102 N. L. R. B. 720, 729-730, relied on by the Board, and Labor Board v. General Shoe Corp., 192 F. 2d 504; Labor Board v. Clausen, 188 F. 2d 439; and Superior Engraving Co. v. Labor Board, 183 F. 2d 783, cited by a dissenting opinion here.
In Bowen Products an employee recalled from layoff was dis-criminatorily placed at the bottom of the relevant seniority list. He unsuccessfully attempted to obtain his proper seniority rating,' and several months later was included in an economic reduction in force. Had his seniority originally been properly computed, he would not have been laid off at that time. The charge was filed and served within six months of the layoff, but more than six months after the original determination of seniority status..Finding that the only basis for a holding of unlawful layoff would be a finding that that determination had been a violation of the Act, the Board dismissed the complaint.
Greenville Cotton Oil (American Federation of Grain Millers) dealt with an alleged discriminatory refusal to reinstate strikers. Conceding that the respondent had engaged permanent replacements, the strikers demanded reinstatement on the ground that the strike had been caused or prolonged by an unfair labor practice committed by the employer prior to the hiring of the replacements. The acts alleged to have cónstituted such unfair practices having taken place more than six months prior to the filing and service of the charge, the Board held § 10 (b) a bar to an order of reinstatement.
The complaint in News Printing Co. alleged that a refusal to grant wage increases to certain employees had been motivated by displeasure at their union activities. As a substantive matter, this allegation turned on the respondent’s motive at the time of the refusal, which was within the limitations period. However, the General Counsel was unable to produce sufficient evidence, from within that period, to prove discriminatory motive, and the Board refused to permit reliance on evidence relating to acts occurring prior to the six-month period. The contention that such earlier acts could be referred to in order to justify the inference that the “pattern of unlawful conduct... continued on into the present situation” was rejected. 116 N. L. R. B., at 211. Compare Paramount Cap Mfg. Co., 119 N. L. R. B. 785, 786, 799, enforcement granted, 260 F. 2d 109, where the presence of substantial post-limitations evidence was held to justify resort to evidence of earlier conduct.
The Universal Oil Products and Tennessee Knitting Mills cases concerned allegations that respondent employers had dominated or assisted labor organizations. Here again, the material issue was as to the relationship of the respondents to the unions involved, as of the date of the charge. Yet in both cases, because the evidence from within the statutory period was too sketchy to warrant a finding of unlawful conduct, the Board refused to permit reference to evidence from the earlier period, declining to rely on an inference that earlier unlawful relationships continued.
While it is true that in Paint, Varnish & Lacquer Makers Union (Andrew Brown Co.), 120 N. L. R. B. 1425, the Board found union picketing during the six-month-period to have been undertaken for the unlawful purpose of obtaining recognition, although the only affirmative evidence of such purpose was based on acts done prior to that period, the decision is not inconsistent, so far as presently relevant, with the cases discussed above. Substantial evidence of purpose from within the limitations period was found in reliance on the inference that the earlier motive had continued unchanged. Id., at 1428, 1438. While the permissibility of an inference of this nature was rejected in the preceding cases, we need not now inquire into this seeming disparity of treatment, for it affects the minor premise only, and does not impair the accuracy of the proposition that, however marshalled, acts within the limitations period must under Board doctrine yield some substantial evidence of unlawful conduct.
Katz v. Labor Board, 196 F. 2d 411, and Labor Board v. Gaynor News Co., 197 F. 2d 719, relied on below and in dissent here, arose under provisions of the Act (§8 (a)(3), 61 Stat. 140) since repealed (65 Stat. 601), which permitted union security agreements only with unions which possessed a Board certificate that a union security clause had been authorized at a special election of the employees involved. While the language, and perhaps the approach, of these cases may be considered inconsistent with the principles we deem governing here, the decisions on their facts present no such difficulty. Proof of the nonexistence of such a certificate, which of course was a continuing fact, plainly did not require resort to testimony about past events; rather the issue was much like one arising out of an agreement illegal on its face, the only difference being that a separate instrument was involved.
We think the rule in conspiracy cases, where the statute of limitations only begins to run upon the commission of the last overt act in furtherance thereof, does not furnish a useful analogy in this case. The statute in question here bars issuance of a complaint “based upon any unfair labor practice” which occurred more than six months prior to the filing of the charge; it does not merely bar proceedings against an unfair labor practice which are not commenced within six months after that unfair labor practice has been committed. Cf. 18 U. S. C. § 3282. Our conclusion that the complaints giving rise to the judgment under review are of necessity “based upon” the unfair labor practice of execution of the agreement, and are barred by time, has drawn on this statute’s purpose and history, and we do not assert the universal applicability of our resolution of the particular question presented for decision. In any event, the commission of an overt act pursuant to a conspiratorial agreement represents a renewed affirmation of the unlawful purpose of the conspiracy. The acts constituting enforcement of a collective bargaining agreement cannot well be so characterized. Beyond that, one may question the appropriateness of analogizing this situation, where proper application of a particular statute of limitations involves taking into account competing values, to one which involves an unlawful agreement of a kind unreservedly condemned, and the entire undoing of which is the undiluted purpose of the criminal law. Indeed, the rule advanced in dissent cannot be squared with the Board’s own approach to the statute. See the cases discussed in notes 12 and 13, ante.
The immediate impetus to the legislation was the pendency of an N. L. R. B. proceeding involving a closed-shop agreement in effect at the Kaiser shipbuilding yards at Portland, Oregon. The agreement, though executed at a time when only 66 workers were employed, was being applied to a 20,000-man work force. The debates show that the issue of representation by minority unions was in the forefront of legislative concern. See 89 Cong. Rec. 6950 (remarks of Reps. Smith and Tarver), 6953 (Rep. Tarver), 7029 (Sens. Truman and Ball), 7031-7032 (Sen. Wagner).
The National Labor Relations Board Appropriation Act, 1945, 58 Stat. 568, made several amendments in the limitations provisions, the principal of which were designed to render the rider inapplicable to agreements with company-dominated unions, and to provide an additional three-month period at the commencement of any renewal of an agreement in which a complaint could be filed.
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_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.
Samuel Jennings JOHNSON, Appellant, v. Fred T. WILKINSON, Warden, United States Penitentiary, Atlanta, Georgia, Appellee.
No. 18246.
United States Court of Appeals Fifth Circuit.
June 20, 1960.
Rehearing Denied July 29, 1960.
Samuel J. Johnson, in pro. per. William C. O’Kelley, E. Ralph Ivey, Asst. U. S. Attys., Charles D. Read, Jr., U. S. Atty., Atlanta, Ga., for appellee.
Before RIVES, Chief Judge, and CAMERON and BROWN, Circuit Judges.
PER CURIAM.
Petitioner, by a writ of habeas corpus, seeks release from the federal penitentiary in Atlanta on the ground that he has served his sentence in full. He was convicted for interstate transportation of stolen vehicles and sentenced on February 5, 1951, to six years and six days in prison. With 852 days remaining on this sentence, he was paroled. While on parole, he committed a second federal offense for which he was arrested in January 1955, convicted, sentenced, and imprisoned in a federal penitentiary in Virginia. Also, because of this offense and other conduct, the Parole Board issued a warrant for his arrest as a parole violator in January 1955 (which petitioner asserts was then served). On June 4, 1957, after serving his sentence for the second crime, he was served with the parole violator’s warrant (the Government says the one originally issued in January 1955) confining him for the 852 days remaining on the original sentence. Petitioner contends that the time served for the second offense should be credited on his first offense as it was federal custody subsequent to revocation of his parole. On the pleadings and affidavits and a full response showing the record of his confinement, releases, etc., but without a hearing, the District Judge denied the writ of habeas corpus. We affirm.
The confinement in the federal prison in Virginia was pursuant to the conviction and sentence for the federal crime committed while on parole from the original sentence. Petitioner is not entitled to credit on the original sentence for the time spent serving the sentence for the subsequent crime committed while he was on parole from the original sentence. Zerbst v. Kidwell, 1938, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399. The District Court found that the parole violator’s warrant was not served until June 14, 1957 at the end of the second sentence. Even assuming that a warrant for the arrest of petitioner was served by a deputy Marshal in January 1955 as petitioner •claims, he was not at that time returned to the custody of the Attorney General under that warrant. He remained under the same confinement until he was arraigned and pleaded guilty to the second offense and commenced service of that sentence in April 1955. The service of the warrant, if made then as claimed, would not have transmuted that custody into custody under the parole violator warrant. That would have been accomplished only by the Marshal’s carrying out the command of the warrant. Jenkins v. Madigan, 7 Cir., 1954, 211 F.2d 904. This was not done until two years later in June 1957. Until then the unexpired term on the original sentence had not begun to run. 18 U.S.C.A. § 4205.
As all the facts either appeared on the face of the record or the one “disputed” fact was immaterial, the District Court could properly dispose of the petition without holding a hearing. Rea v. McDonald, 5 Cir., 1946, 153 F.2d 190.
Affirmed.
. Petitioner would have been out of prison a long time ago but for a sequel to the events recited above. He was paroled a second time and again broke his parole for which he was returned to serve the remaining time (then 727 days) on his original conviction.
. The parole violator’s warrant, directed to any federal officer authorized to serve criminal process, provides:
“NOW, THEREFORE, this is to command you to execute this warrant by taking the said Samuel J. Johnson [petitioner], wherever found in the United States, and Mm safely return to the institution designated according to law.”
. 18 U.S.O.A. § 4205:
“Retaking parole violator under warrant; time to serve undiminished
“A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.”
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_casetyp1_7-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
FIDELITY SHIPPING COMPANY, Ltd., Appellant, v. William ERICKSON and W. J. Jones & Son, Inc., Appellees. FIDELITY SHIPPING COMPANY, Ltd., Appellant, v. Eugene BENNETT and W. J. Jones & Son, Inc., Appellees.
Nos. 19791, 19792.
United States Court of Appeals Ninth Circuit.
April 12, 1965.
Rehearing Denied May 20, 1965.
Erskine B. Wood, John R. Brooke, Wood, Wood, Tatum, Mosser & Brooke, Portland, Or., for appellant.
Philip Levin, Pozzi, Levin & Wilson, Dennis J. Lindsay, Garry P. McMurry, Krause, Lindsay & Nahstoll, Portland, Or., for appellees.
Before ORR, MERRILL and BROWNING, Circuit Judges.
PER CURIAM.
Appellees Erickson and Bennett are longshoremen who were injured by a falling boom aboard the Steamship Alexandria. Erickson and Bennett each filed a libel against the vessel and its owner, appellant Fidelity Shipping Company, alleging that their injuriés were the proximate result of unseaworthiness of the Alexandria. Appellant impleaded appel-lee stevedoring company, W. J. Jones & Son, employer of Erickson and Bennett, claiming a right to indmenity due to an alleged failure to perform stevedoring services in a safe, proper, and workmanlike manner. Trial was had and the trial judge found that the appellees were injured as a proximate result of the unseaworthiness of the Alexandria. Specifically, the supply of steam was found to be inadequate to properly operate the boom and the brake inadequate to prevent the boom from falling. He also found in favor of W. J. Jones & Son on the third-party indemnity claim. He found no failure on the part of W. J. Jones & Son or its employees to perform the stevedoring services here in a safe, proper, and workmanlike manner.
We have examined the record in this case and find substantial evidence to support each of the above findings.
Appellant contends that the amount of damages awarded to Erickson was excessive. Our examination of the record convinces us that there is no merit to this contention.
Affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Charlotte MAYENCON, Debtor, Appellant, v. Eugene McCANDLESS, Creditor.
No. 12542.
Circuit Court of Appeals, Eighth Circuit.
Feb. 23, 1943.
Farrington & Curtis, of Springfield, Mo., for appellant.
Frank B. Williams, of Springfield, Mo., for appellee.
PER CURIAM.
Appeal from District Court docketed and dismissed at the costs of appellants, on motion of appellee.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_lcdisposition
|
I
|
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.
MARINO et al. v. ORTIZ et al.
No. 86-1415.
Argued November 30, 1987
Decided January 13, 1988
Ronald Podolsky argued the cause and filed briefs for petitioners.
Glen D. Nager argued the cause pro hac vice for the United States as amicus curiae. With him on the brief were Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Clegg, David K. Flynn, and Dennis J. Dimsey.
Leonard J. Koerner argued the cause for respondents and filed a brief for respondent New Y ork City. With him on the brief were Peter L. Zimroth and Elizabeth Dvorkin. Robert David Goodstein and Eileen West filed a brief for respondent Guardians Association of the Police Department of the City of New York, Inc. Kenneth Kimerling filed a brief for respondents Hispanic Society et al. Richard K. Walker filed a brief for respondent Sergeants Benevolent Association of the City of New York.
Together with Costello et al. v. New York City Police Department et al., also on certiorari to the same court (see this Court’s Rule 19.4).
Benjamin Vinar filed a brief for Dov Hikind et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the city of Birmingham, Alabama, by James P. Alexander, Robert K. Spotswood, and James K. Baker; for the National League of Cities et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, Beate Bloch, Barbara E. Etkind, Rebecca L. Ross, and Todd D. Peterson; for the Equal Employment Advisory Council by Robert E. Williams and Douglas S. McDowell; and for the Lawyers’ Committee for Civil Rights Under Law by Paul C. Saunders, Thomas D. Barr, Robert D. Joffe, Robert F. Mullen, Conrad K. Harper, Stuart J. Land, Norman Redlich, William L. Robinson, Judith A. Winston, Richard T. Seymour, and Stephen L. Spitz.
Per Curiam.
Petitioners seek to challenge a consent decree approving an agreement settling a Title VII lawsuit against the City of New York. After the results of a police sergeant’s examination revealed that blacks and Hispanics had passed the examination at disproportionately low rates, groups representing these minority members of the New York City Police Department sued the Department under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. Three other groups were permitted to intervene as codefendants: “the Sergeants Benevolent Association (‘SBA’), representing over 500 officers on the eligible list who had obtained provisional appointments as sergeants; the Sergeants Eligibles Association (‘SEA’), representing officers who were on the eligible list but had not received provisional appointments; and various white ethnic societies and other individual officers (the ‘Schneider Intervenors’).” Hispanic Society of New York City Police Dept. v. New York City Police Dept., 806 F. 2d 1147, 1151 (CA2 1986) (Costello case below). The parties reached settlement, which was first approved by the District Court on an interim basis, and finally, after a hearing, by consent decree. The settlement provided that black and Hispanic candidates who had failed to make the eligible list would be promoted until the racial/ethnic composition of the new sergeants was approximately the same as the racial/ethnic composition of the group of candidates taking the test. The SBA and the SEA signed the agreement; the Schneider Intervenors, although opposing the settlement, chose not to appeal.
Petitioners are a group of white police officers who claim that they were not placed on the eligible list even though they had scored at least as high on the examination as the lowest scoring minority officer promoted under the interim order. Although they presented their objections to the District Court at the hearing, they chose not to move to intervene pursuant to Federal Rule of Civil Procedure 24, either initially as codefendants or later to replace the Schneider Intervenors for purposes of appeal. See United Airlines, Inc. v. McDonald, 432 U. S. 385, 395 (1977). Instead, they filed suit during the period between the interim approval of the settlement and the final consent decree, claiming a violation of their Fourteenth Amendment equal protection rights. In 806 F. 2d 1144 (CA2 1986) (Marino case below), the Court of Appeals affirmed the District Court’s dismissal of petitioners’ suit, deeming it an impermissible collateral attack on a consent decree by persons who could have intervened in the underlying litigation. Petitioners also attempted to appeal from the consent decree. In Costello, the Court of Appeals dismissed the appeal because petitioners were not parties to the litigation giving rise to the consent decree. 806 F. 2d 1147 (CA2 1986). We granted certiorari to consider these judgments, 481 U. S. 1047 (1987).
As to the issue raised in Marino, namely, whether a district court may dismiss as an impermissible collateral attack a lawsuit challenging a consent decree by nonparties to the underlying litigation, we are equally divided, and therefore affirm the judgment of the Court of Appeals. As to the issue raised in Costello, we hold that because petitioners were not parties to the underlying lawsuit, and because they failed to intervene for purposes of appeal, they may not appeal from the consent decree approving that lawsuit’s settlement; therefore, we affirm the judgment of the Court of Appeals. The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled. See, e. g., United States ex rel. Louisiana v. Jack, 244 U. S. 397, 402 (1917); Fed. Rule App. Proc. 3(c) (“The notice of appeal shall specify the party or parties taking the appeal”). The Court of Appeals suggested that there may be exceptions to this general rule, primarily “when the nonparty has an interest that is affected by the trial court’s judgment.” 806 F. 2d, at 1152. We think the better practice is for such a nonparty to seek intervention for purposes of appeal; denials of such motions are, of course, appealable. See United Airlines, Inc., supra.
Accordingly, the judgments of the Court of Appeals are
Affirmed.
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_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.
Rex H. REED, Appellant, v. NATIONAL LABOR RELATIONS BOARD, et al., Appellees.
No. 90-5147.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 31, 1991.
Decided March 15, 1991.
Hugh L. Reilly, Kensington, Md., for appellant.
Abby Propis Simms, Atty., N.L.R.B., with whom Margery E. Lieber, Asst. Gen. Counsel for Special Litigation, N.L.R.B., Washington, D.C., was on the brief, for appellees.
Before MIKVA, Chief Judge, and EDWARDS and THOMAS, Circuit Judges.
Opinion for the Court filed by Chief Judge MIKVA.
MIKVA, Chief Judge:
This case requires us to decide whether Excelsior lists, which the National Labor Relations Board (the “NLRB” or “Board”) obtains from employers and distributes to unions in representation proceedings, may be disclosed to the public through the Freedom of Information Act (“FOIA” or “the Act”), 5 U.S.C. § 552 (1988). We conclude that the lists are protected from disclosure under Exemption 6 of the Act, and affirm the district court’s entry of summary judgment for the Board.
I.
Appellant Rex Reed requested that the NLRB disclose copies of Excelsior lists in representation cases closed after January 1, 1984, preferably limited to elections won by unions in states without right-to-work laws. Excelsior lists refer to the Board’s practice of requiring employers involved in pending representation elections to submit a list containing the names and addresses of all employees eligible to vote, which the Board then makes available to the organizing unions. Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1966); see NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969).
The Board's FOIA officer denied Reed’s request for the Excelsior lists, concluding that they were protected under Exemptions 6 and 7(C) of the Act. Exemption 6 allows agencies to withhold “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,” while under Exemption 7(C) agencies may withhold “records or information compiled for law enforcement purposes” to the extent that production of such records “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §§ 552(b)(6), (7)(C). After the Board’s Acting General Counsel denied his appeal, Reed filed a complaint in the district court.
On cross motions by the parties, the district court entered summary judgment for 'the Board, concluding that Exemption 6 protected the Excelsior lists from disclosure. See Reed v. NLRB, Memorandum Opinion and Order 1990 WL 136647 (D.D.C. May 15, 1990) [hereinafter Order \ The court found that (1) the lists constituted “similar files” within the meaning of Exemption 6; (2) the listed employees possessed a viable privacy interest in their names and addresses, even where the lists had previously been disclosed to parties in representation cases; and (3) there was no public interest in disclosure, given that the lists would reveal “little or nothing about” the NLRB’s conduct. Order at 2-4. The court did not reach the Board's alternative argument that Exemption 7(C) also protected the lists from disclosure.
II.
In reviewing the district court’s entry of summary judgment for the Board, we must first “be sure that the district court has not overlooked or impermissibly resolved any disputed material facts; and second, we must ensure that the judge correctly applied the relevant law to these undisputed facts.” Abourezk v. New York Airlines, Inc., 895 F.2d 1456, 1458 (D.C.Cir.1990); accord Sherwood v. Washington Post, 871 F.2d 1144, 1145 (D.C.Cir.1989). As the facts of this case are not in dispute, we focus here on the propriety of the district court’s application of controlling legal precedents.
A threshold question is whether Excelsior lists — which contain the names and addresses of all employees eligible to vote, sometimes broken down by employment area or job category — constitute “similar files” within the meaning of Exemption 6. See 5 U.S.C. § 552(b)(6) (protecting “personnel and medical files and similar files”). Interpreting the legislative history of Exemption 6, the Supreme Court has instructed lower courts to construe the phrase “similar files” broadly, and to apply the exemption to any “Government records on an individual which can be identified as applying to that individual.” See United States Dep’t of State v. Washington Post Co., 456 U.S. 595, 601-02, 102 S.Ct. 1957, 1961, 72 L.Ed.2d 358 (1982) (citation omitted). Accordingly, decisions of this and other circuits have found names and addresses of individuals, like the Excelsior lists at issue here, to be “similar files.” See, e.g., National Ass’n of Retired Federal Employees v. Horner, 879 F.2d 873, 874 (D.C.Cir.1989) [hereinafter NARFE] (noting that “NARFE does not dispute that the names and addresses of recent annuitants are covered by the phrase”), cert. denied, — U.S. -, 110 S.Ct. 1805, 108 L.Ed.2d 936 (1990); Van Bourg, Allen, Weinberg & Roger v. NLRB, 728 F.2d 1270, 1273 (9th Cir.1984) (finding that Excelsior lists constitute “similar files”); Wine Hobby USA, Inc. v. IRS, 502 F.2d 133, 135 (3d Cir.1974) (names and addresses of federally registered wine producers are “similar files”).
The next step under Exemption 6 involves identifying the relevant privacy interests in nondisclosure and the public interests in disclosure, and determining “whether, on balance, disclosure would work a clearly unwarranted invasion of personal privacy.” NARFE, 879 F.2d at 874. The district court correctly concluded that employees possess a legitimate privacy interest in their names and addresses. See Order at 3. Reviewing an association’s request for the names and addresses of retired federal employees, we recently held that “the privacy interest of an individual in avoiding the unlimited disclosure of his or her name and address is significant.” NARFE, 879 F.2d at 875. See also Federal Labor Relations Auth. v. U.S. Dep’t of the Treasury, 884 F.2d 1446, 1452 (D.C.Cir.1989) (reaffirming NARFEs privacy holding in context of current federal employees), cert. denied, — U.S. -, 110 S.Ct. 864, 107 L.Ed.2d 948 (1990); Wine Hobby USA, 502 F.2d at 137 (noting that an “individual may fervently wish [her home address] to remain confidential”).
Reed nonetheless contends that the NLRB’s prior disclosure of Excelsior lists to unions during representation proceedings and the Board’s failure to place restrictions on the unions’ use of the lists undermine the significance of the individuals’ asserted privacy interests. As the district court recognized, however, the Supreme Court has expressly rejected such a “cramped notion of personal privacy,” affirming “the privacy interest inherent in the nondisclosure of certain information even where the information may have been at one time public.” United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 1476, 1478, 103 L.Ed.2d 774 (1989) [hereinafter Reporters Committee ]. Although Reporters Committee addressed Exemption 7(C), the Court noted the similarity of the inquiry under Exemption 6, see 109 S.Ct. at 1472-73, 1479; indeed, we have previously found the case controlling in the Exemption 6 context, see NARFE, 879 F.2d at 874. Reed’s attempt to limit the employees’ privacy interest in Excelsior lists simply cannot overcome the language and holding of Reporters Committee.
Reporters Committee also controls our analysis of the countervailing public interest in disclosure of Excelsior lists. The Supreme Court explained that only “[official information that sheds light on an agency’s performance of its statutory duties” merits disclosure under FOIA, and noted that “disclosure of information about private citizens that is accumulated in various governmental files” would “reveal[] little or nothing about an agency’s own conduct.” Reporters Committee, 109 S.Ct. at 1481. See also NARFE, 879 F.2d at 879 (noting that “unless the public would learn something directly about the workings of the Government,” there is no public interest in disclosure (emphasis in original)). The Excelsior lists at issue here contain exclusively private information and would reveal nothing about the Board's conduct of representation proceedings or its performance of any other statutory duty. See also Getman v. NLRB, 450 F.2d 670, 680 (D.C.Cir.1971) (Excelsior lists “do not in any direct sense reveal anything about the Board’s operations”). Cf. Ray v. U.S. Dep’t of Justice, 908 F.2d 1549, 1556 (11th Cir.1990) (concluding that INS interview reports would reveal “what our government is doing and saying regarding Haitians who unsuccessfully attempt to flee to this country”).
Reed nonetheless asks us to find a public interest in disclosure because he plans to use the Excelsior lists to correct allegedly widespread misrepresentations the Board has made to employees concerning compulsory union membership and dues requirements. Again, we remind Reed that we are an intermediate court, bound by the Supreme Court’s unequivocal declaration in Reporters Committee that the identity and purpose of the requesting party are irrelevant under FOIA. See Reporters Committee, 109 S.Ct. at 1480 (disclosure “cannot turn on the purposes for which the request for information is made,” and, except in cases involving privilege, “the identity of the requesting party has no bearing on the merits of” a FOIA request).
Left, then, to balance a viable privacy interest against a non-existent public interest, we agree with the district court that disclosure of the Excelsior lists would constitute an unwarranted invasion of personal privacy. NARFE, 879 F.2d at 879 (“We need not linger over the balance; something, even a modest privacy interest, outweighs nothing every time.”). Moreover, following the Supreme Court’s instruction in Reporters Committee that “individual circumstances [may be] disregarded when a case fits into a genus in which the balance characteristically tips in one direction,” 109 S.Ct. at 1483, we conclude that Exemption 6 protects Excelsior lists as a category— not merely those lists sought here by Reed. Indeed, the categorical nature of our holding flows directly from our analysis under Exemption 6; the balancing test we are instructed to administer contains no room for individualization or consideration of specific circumstances. See NARFE, 879 F.2d at 879 (Exemption 6 protects category of federal annuitants).
Although the district court did not reach the question whether Excelsior lists are also protected from disclosure under Exemption 7(C), the Board urges this as an alternative disposition. Given our affirmance of the district court’s Exemption 6 holding, we need not remand for consideration of Exemption 7(C). In any event, we are skeptical that Excelsior lists, obtained by the Board pursuant to routine pre-election procedures — not as part of a specific investigation into potential unfair labor practices — satisfy the threshold requirement of Exemption 7(C) that they be “compiled for law enforcement purposes.” See Birch v. U.S. Postal Serv., 803 F.2d 1206, 1209-10 (D.C.Cir.1986) (for agencies performing both law enforcement and administrative functions, only “investigations which focus directly on specifically alleged illegal acts” are covered by Exemption 7); Committee on Masonic Homes of R.W. Grand Lodge v. NLRB, 556 F.2d 214, 218-19 (3d Cir.1977) (finding that union authorization cards were not “compiled for law enforcement purposes,” and stating that “ ‘law enforcement purposes’ must relate to some kind of formal proceeding, and one that is pending”).
III.
For the foregoing reasons, we conclude that Excelsior lists are protected from disclosure under FOIA Exemption 6, and affirm the district court’s entry of summary judgment for the Board.
It is so ordered.
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_appel1_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
ABC AIR FREIGHT COMPANY, Inc., et al., Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent. C. F. Air Freight, Inc., Consolidated Freightways, Inc., P I E Air Freight-Forwarding, Inc., Pacific Intermountain Express Co., D C International, Inc., and Navajo Freight Lines, Inc., Intervenors-Respondents.
No. 281, Docket 31795.
United States Court of Appeals Second Circuit.
Argued Jan. 4, 1968.
Decided March 13, 1968.
Louis P. Haffer, Washington, D. C.'(Paul Berger, New York City, Andrew P. Goldstein, Washington, D. C., of counsel), for petitioners.
Raymond J. Rasenberger, Lear, Scoutt & Rasenberger, Washington, D. C., for intervenors, D C International, Inc. and Navajo Freight Lines, Inc.
Eugene T. Liipfert, Verner, Liipfert & Bernhard, Washington, D. C., James M. Verner, Washington, D. C., on brief, Robert J. Sisk, New York City, Hughes, Hubbard, Blair & Reed, New York City, on brief, for intervening respondents, CF Air Freight, Inc., Consolidated Freight-ways, Inc., P. I. E. Air Freight Forwarding, Inc., and Pacific Intermountain Express Co.
Warren L. Sharfman, Assoc. Gen. Counsel, Joseph B. Goldman, Gen. Counsel, O. D. Ozment, Deputy Gen. Counsel, Harry N. Stein, Donald F. Turner, Howard E. Shapiro, Attys., Dept, of Justice, Washington, D. C., for respondent, Civil Aeronautics Bd.
Before LUMBARD, Chief Judge, and MOORE and FRIENDLY, Circuit Judges.
FRIENDLY, Circuit Judge:
Under § 296.11 of the Civil Aeronautics Board’s Economic Regulations, effective October 15, 1948, as amended, air freight forwarders are exempted from the certificate provisions of § 401 of the Federal Aviation Act (other than subdivision (k) (3)), see § 101(3), but must obtain letters of registration. While these are normally issued, under delegated power, by the Bureau of Operating Rights, 14 C.F.R. § 385.13(d) (1967), without a hearing, the Board’s policy as we shall later develop in some detail, had been to deny such letters to motor carriers or subsidiaries of motor carriers significantly competing with air carriers.
In January 1966 the Board began a proceeding known as the Motor Carrier-Air Freight Forwarder Investigation, noting that “The fundamental question posed is whether long-haul motor carriers of general commodities should be allowed to participate in air transportation, either in their own right or through the device of acquiring an air freight forwarder.” Various applications for approval of acquisitions of air freight forwarders were consolidated.
These applications had somewhat altered their aspect by the time Examiner Ruhlen rendered his initial decision. Two long-haul truckers, D. C. International, Inc. and Navajo Freight Lines, Inc., sought authority to act as air freight forwarders in their own right. Consolidated Freightways, Inc., the nation’s largest long-distance trucker, which had initially sought approval of its acquisition of control of an existing domestic and international air freight forwarder, applied for a letter of registration for its wholly-owned subsidiary, CF Air Freight, Inc., and for the necessary ancillary approvals under §§ 408 and 409. Pacific Inter-mountain Express Company, which also had initially sought approval only of its acquisition of control of an international air freight forwarder, applied both for this and for letters of registration for its subsidiary, P. I. E. Air Freight Forwarding, Inc., and related relief. The applications were opposed by eight scheduled airlines including the six largest domestic operators, by all-cargo air carriers, and by air freight forwarders and their association, most of whom have joined in the instant petition for review. They were opposed also by the Board’s Bureau of Operating Rights.
The Examiner rendered an Initial Decision in April 1967. He began by saying that:
“The immediate issue is whether the four applicants should be authorized to operate as air freight forwarders, but the Board, in instituting this proceeding, stated that the fundamental question is whether long-haul motor carriers of general commodities should be allowed to act as air freight forwarders.”
He considered that the issue must be resolved against the background of “free entry” into air freight forwarding which he regarded as established in the Air Freight Forwarder Case, 9 C.A.B. 473 (1948). Reviewing various contentions of the applicants as to what their position as motor carriers would enable them to contribute to air transportation, he found these claims of special advantages were not made out, save only that “use of the sophisticated accounting, billing, and reporting systems which only a large organization can afford should assist the applicants in providing a convenient service to the public.” Nevertheless he concluded that “the applicants, by providing sophisticated management, personnel, and equipment and devoting their well-financed experienced organization to the generation and transportation of cargo by air, will contribute a substantial benefit to the public.” Turning to the effect on existing air freight forwarders, he thought “the strong and efficient forwarders will suffer only minor losses with the entry of the applicants into competition,” although “the demise of some of the weaker air freight forwarders may be hastened by the competition provided by the applicants.” Believing that “If the applicants are to be successful, they will have to rely on newly generated traffic,” the Examiner dismissed the arguments based on their conflict of interest primarily on the basis that “although in some circumstances for short periods of time an energetic and clever promoter may be able to persuade shippers to use modes of transportation adverse to their economic interests, in the long run, the shipper will choose that form of transportation which best meets his needs.” Finally, following a previous Board ruling that the second proviso to § 408(b) was inapplicable to “indirect air carriers,” Air Freight Forwarder Case, supra, 9 C.A.B. at 503, reaffirmed in Airfreight Forwarder Investigation, 21 C.A.B. 536, 544-45 (1955), he held there was no legal barrier to the applications, and proposed that all should be granted for an experimental period of five years.
The Board, over a dissent by Vice Chairman Murphy, followed the Examiner’s recommendations except in a minor respect not here material. However, the Board exhibited markedly greater enthusiasm over the new departure than had the Examiner. Apparently dissatisfied with the Examiner’s theory that the conflict of interest arising from authorizing long distance truckers to act as air freight forwarders should be disregarded because it would not be effective in the long run, the Board decided that the double role would lessen conflict rather than increase it. Whereas the Examiner seemed to have thought that generation of new air freight by the truckers would be only of the same sort that any vigorous sales effort would engender, the Board found a particularized source in the “large proportion of the truckers’ present surface traffic * * * comprised of shipments weighing less than 200 pounds,” which they now transport “at a loss or minimal gain,” and whence they “could earn more as forwarders by shipping such packages by air.” It concluded also that authorizing the truckers to act as air freight forwarders “should increase the intermodal carriage of freight by air and truck”; indeed, it regarded its decision “as a real breakthrough in opening up the most hopeful avenue for increasing intermodal transportation of freight by surface and air.” It thought also that “The participation * * * of motor carriers like the applicants may well be necessary to achieve the full promise of air cargo,” emphasizing especially the role they could play in areas outside the ten cities in which the traffic is most developed. For these reasons, as well as those urged by the Examiner, it was “convinced that a new policy towards motor carriers like the applicants deserves a trial.”
I.
The Board’s decision does not measure up to the standards required by § 8(b) of the APA, as recently applied in Northeast Airlines, Inc. v. CAB, 331 F.2d 579 (1 Cir. 1964), see especially Judge Aldrich’s concurring opinion, 331 F.2d at 589. The most serious deficiency lies in the ambiguity whether the Board has established a policy of entry for all truckers who want to act as air freight forwarders or has merely granted the four applications that were before it, and the inadequacy of its consideration of effect on the existing forwarders if the former is the right interpretation as we strongly suspect.
Certainly the Examiner thought, as instanced by our first quotation, that the decision would have general applicability. That also would be the natural inference from such statements by the Board as that “Our purpose in instituting this investigation was to determine whether our traditional restrictions on surface carriers have become outmoded for motor carriers like the applicants,” that it regarded its decision “as a real breakthrough” in stimulating intermodal transportation, and that it was establishing “a new policy towards motor carriers like the applicants.” Indeed the Board’s brief in this court concedes that “its findings and pronouncements also were such as to indicate that it may be expected to grant future applications by other long-haul motor carriers to engage in air freight forwarding activities” — which, as indicated, is normally done by its. staff and without a hearing.
On the other hand, the agency almost completely failed to examine the effect that entry of large numbers of motor carriers will have upon the structure of the air freight forwarding industry. The Board’s opinion does not really consider this question at all — its finding that “motor carriers like the applicants” would stimulate the development of air cargo is based entirely upon a review of the operational plans submitted by the four carriers in the instant proceeding and no attempt is made to assess the effect of a general motor carrier invasion. The Examiner’s analysis is only slightly less scanty. At one point the possibility of adverse effect upon the industry is discounted on the ground that “the independent freight forwarders” are in an “ impregnable” competitive position at the present time. But to evidence this conclusion, the Examiner pointed only to the increasing profitability of the top ten forwarders. As we have already noted, other parts of his opinion recognize that “the demise of some of the weaker air freight forwarders may be hastened by the competition provided by the applicants.” If “some” of the existing forwarders will succumb to the challenge of these four motor carriers, the impact of a general policy admitting all long-haul truckers will be much more severe, and the danger is enhanced by the probability, hereafter developed, that the truckers would bend their efforts primarily to forwarding freight now moving by air rather than to diverting freight now moving by truck.
The record shows that the air freight forwarding industry is now very much divided between the haves and have-nots. Of the 120 forwarders the ten largest accounted for 72.8% of total revenue and earned 7.2 millions dollars in pre-tax profits in 1965; the remaining 110 suffered a net operating deficit of 1.1 million dollars. Seventy percent of the domestic forwarders earned less than $25,000 in 1964; one-third operated at a loss. Indeed, even the aggregate figure representing the profitability of the “impregnable” top ten is quite deceiving — of the 7.2 million dollars earned by these forwarders, 5.2 was garnered by Emery Air Freight, which has consistently captured 30% of the market. Taken as a whole the industry would thus seem highly vulnerable to the effect of entry by many well-financed competitors.
As to the number of truckers that might take advantage of the Board’s new policy, the Bureau of Operating Rights presented figures that reveal the dimension of the problem:
Numbers of Carriers in 1964 Compared by Revenue Characteristics (Exhibit BOR-8)
$1,000,000 or More Gross Revenue $200,000 to 1,000,000 Under 200,000 Total
ICC Licensed
Motor Carriers 1,195 2,536 11,748 15,479
CAB Authorized
Air Freight
Forwarders 17 32 56 105
The dangers seem even greater than this chart reveals. There are 50 truckers with gross revenue exceeding $25,-000,000 and 20 with gross revenue of some $40,000,000 or more — a level attained in air freight forwarding only by Emery Air Freight, with 30% of the market, even when Emery’s thriving international forwarding operations are included. Indeed, three of the four instant applicants have revenues larger than even Emery — Consolidated Freightways being three times as large. Only three other air freight forwarders who are members the forwarders’ association, one of them predominantly international, have gross revenues of $10,000,000 or more, as against over a hundred truckers with revenues exceeding that amount. In this context, the Examiner’s confidence in the ability of even the stronger independent forwarders to withstand a massive invasion of motor carriers is without substantial evidentiary support.
The record affords no indication that the agency made any informed determination of the number of motor carriers that would seek to take advantage of its new policy. While the fact that only four have applied could indicate that the others lack interest, this seems more likely to have represented simply a tactical determination that it was best for a small number to try to open the gate. Indeed, competitive reasons might force other motor carriers to follow the leaders whether or not they would otherwise have wished. The Bureau of Operating Rights seemed to suggest this when it said in commenting on the chart we have reproduced: ‘If, for competitive reasons, all of the motor carriers in the over $1,-000,000 revenue category apply for and are granted air freight forwarder authority, the size of the air freight forwarder industry would increase by more than 10 fold.” It is as obvious as anything can be that the effect on the existing air freight forwarders will be very different if the permission here accorded is utilized by all long-haul motor carriers, almost all, many, or only four. And, as the Board properly recognized, the continued health of the independent forwarders is of utmost importance not only to themselves but to the future of air freight. Indeed the argument that motor carrier applicants were not disqualified by their conflicting interests rested in part on the continued ability of the independents to prevent them from fooling all of the people all of the time.
Perhaps concerned by realization that the breath of the Board’s policy pronouncement and the meagreness of its findings as to competitive effect were not in mesh, counsel for the Board, in a footnote to their brief, accused petitioners of having “distorted the Board’s opinion” by indicating “that only casual pro forma consideration would be given to further applications of ‘all members of’ an ‘entire class’ * * We find no distortion; indeed, as already indicated, we would so read the opinion and Board counsel themselves said as much in the earlier passage we have quoted from their brief. Of course, it may be that the footnote is right and the earlier passage wrong; if entry of motor carriers into air freight forwarding is indeed to be an experiment, it would seem much more sensible to limit the number unless — another point on which the decisions shed no light — this would create unfair dislocations within the motor carrier industry. But the case in this aspect comes precisely within Mr. Justice Cardozo’s much-quoted observation, “We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” United States v. Chicago, M. St. P. & P. R. R., 294 U.S. 499, 511, 55 S.Ct. 462, 467, 79 L.Ed. 1023 (1935); see also Secretary of Agriculture of United States v. United States, 347 U.S. 645, 654, 74 S.Ct. 826, 98 L.Ed. 1015 (1954).
This failure of analysis of the effect of general entry by motor carriers cannot be excused on the basis of the Board’s twenty year commitment to a policy of “free entry” into freight forwarding in contrast with the contrary view arrived at by the Interstate Commerce Commission and adopted by Congress as to surface forwarding. See 71 Stat. 452 (1957), and 2 U.S.Code Cong. & Adm. News, 85th Cong. 1st Sess. pp. 1640-45 (1957). Free entry by persons willing to risk new capital in air freight forwarding as a prime occupation is one thing; entry as a sideline to much larger investments in other business is something else again. This consideration is peculiarly important when the other business is surface transportation — another point of difficulty to which we now turn.
II.
Until the decision here under review, the Board has granted surface carriers air forwarding authority only after study of the particularized situation convinced it that the carrier’s conflict of interest would not “result in material diversion of traffic from air to surface transportation and deprive the applicants of sufficient incentive to conscientiously promote and develop airfreight forwarding.” Air Freight Forwarder Authority Case, Order E-21056, July 10, 1964 (mimeo, page 4). In the first Air Freight Forwarder Case, supra, 9 C.A.B. at 507-08, the Board granted authority to three Class I motor carrier affiliates but only on a showing that the motor carrier operations were so limited as not to be truly competitive with air transportation ; it denied authority to a subsidiary of a railroad on the grounds that this “would create a serious handicap to independent air freight forwarders” and that the conflict of interest “might prove detrimental to the full development of the air services.” In it's second domestic Airfreight Forwarder Investigation, 21 C.A.B. 536, 546 (1955), the Board granted experimental authority to two forwarders controlled by railroads, but once again the decision was made only after the applicants’ particular proposals were studied, and no indication was given that subsequent applications would not be subjected to similar scrutiny. Finally in 1964, the Board granted motor carriers permission to forward household goods only after finding that very little of this merchandise was then being shipped by air and that carriers of household goods did not have substantial investments in long-haul equipment competitive with air transit. Compare Telstar Air Freight, Inc., Order E-22429 (issued under delegated authority) (1965). What was done here was not a modest expansion of these exceptions but a total reversal of policy.
We fully agree that, as Mr. Justice Fortas recently so well expressed it, an administrative agency, “faced with new developments or in light of reconsideration of the relevant facts and its mandate, may alter its past interpretation and overturn past administrative rulings and practice. * * * [T]his kind of flexibility and adaptability to changing needs and patterns of transportation is an essential part of the office of a regulatory agency. Regulatory agencies do not establish rules of conduct to last forever; they are supposed, within the limits of the law and of fair and prudent administration, to adapt their rules and practices to the Nation’s needs in a volatile, changing economy. They are neither required nor supposed to regulate the present and the future within the inflexible limits of yesterday.” American Trucking Ass’ns v. Atchison, Topeka & S. Fe R.R., 387 U.S. 397, 416, 87 S.Ct. 1608, 1618, 18 L.Ed.2d 585 (1967). But we also concur with the First Circuit that a reversal of agency policy calls for thorough analysis and explication, City of Lawrence, Massachusetts v. CAB, 343 F.2d 583 (1965), such as was performed by the Interstate Commerce Commission in the case eliciting the remarks of the Supreme Court we have quoted.
This is particularly necessary when the previous policy is not wholly agency determined but is a radiation from a direction of Congress. We need not quarrel with the Board’s previously cited decision, sustained by the Seventh Circuit, American Airlines, Inc. v. CAB, 178 F.2d 903, 909-910 (1949), that the second proviso to § 408(b), see fn. 2, does not apply in terms to an “indirect air carrier” since such a carrier could never avail itself of the statutory escape hatch, namely, demonstrating that it can “use aircraft to public advantage in its operation.” Nevertheless, as was held by another court of appeals reviewing the same decision, in an opinion curiously not called to our attention, National Air Freight Forwarding Corp. v. CAB, 90 U.S.App.D.C. 330, 197 F.2d 384 (1952), the Board is nevertheless obliged to consider the policies behind the proviso in regulating entry into forwarding. Congressional efforts to prevent participants in one form of transportation from limiting the development of competing forms have a fifty-five year history, going back to the Panama Canal Act of 1912, 49 U.S.C. § 5(14)-(16), see Lake Line Applications Under Panama Canal Act, 33 ICC 699, 710-14 (1915). As to the importance of this policy in air regulation, we need only refer to the various opinions in American President Lines, Ltd., Petition, 7 C.A.B. 799 (1947), where, after thorough reexamination, a majority of the Board concluded that although the second proviso to § 408(b) did not in terms apply to an application by a surface carrier for a certificate under § 401, respect for the policy determination of Congress required that unless such a carrier could meet the qualification of the second proviso as to using aircraft in its operation, it must show “that disadvantages existing upon the facts of the particular case by reason of its being a surface carrier were avoided or overcome by other considerations of public interest supported by the record.” 7 C.A.B. at 807. Later decisions of the Supreme Court in the motor carrier field show that the effect of the second proviso is at least that great. See American Trucking Ass’ns v. United States, 355 U.S. 141, 78 S.Ct. 165, 2 L.Ed.2d 158 (1957); American Trucking Ass’ns v. Frisco Transportation Co., 358 U.S. 133, 141, 79 S.Ct. 170, 3 L.Ed.2d 172 (1958); American Trucking Ass’ns Inc. v. United States, 364 U.S. 1, 80 S.Ct. 1570, 4 L.Ed.2d 1527 (1960).
We find no force in the contention of Board counsel that questions of conflict in interest in air freight forwarding were ruled out by a clause in § 410(c) of Title IV added to the Interstate Commerce Act by the Freight Forwarder Act of 1942, 56 Stat. 291, which we quote in the margin. Apart from the fact that the clause prohibits the issuance of forwarder permits to carriers themselves, as the Board here proposes to do for D. C. International and Navajo, since “this would create difficulties of administration and possible discriminatory practices,” 87 Cong.Rec. 8427 (1942) (remarks of Representative Wolverton), the policies behind the 1942 proviso do not apply to the situation before us. Congress believed that since independent forwarders could consolidate shipments, thereby gaining a profit, it was “fundamentally unfair to deny to a common carrier that has invested its money in transportation facilities the right to use those facilities upon as favorable a basis as any forwarder can use them.” Id. So far as air forwarding is concerned, it would be the airlines, not other common carriers, that could make a similar complaint. A second reason for this provision, also inapplicable here, was that certain railroads had already acquired forwarders whereas others had not and it was desired to avoid discrimination. See U. S. Code & Adm. News, 85th Cong. 1st Sess. p. 1641 (1957); 88 Cong.Rec. 8427 (1942) (remarks of Representative Wolverton). Since Congress was careful to make clear that “the Interstate Commerce Commission shall not have jurisdiction of, and part IV shall not apply to, freight forwarding by the use of air facilities, utilized in connection with air transportation * * H.Rep.No. 1172, supra at p. 7 (1941), the proviso to § 410(c) of the Interstate Commerce Act is of no importance when the concerns that motivated its enactment are found to be irrelevant. See also Pan American World Airways, Inc. v. CAB, 380 F.2d 770, 782 (2 Cir. 1967), cert. granted, 390 U.S. 919, 88 S.Ct. 850, 19 L.Ed.2d 978 (1968).
We recognize that there is a substantial difference between allowing a surface carrier to control or become one of the limited number of certificated air carriers and to enter the field of air freight forwarding where a larger number of competing operators can thrive. Nevertheless, the Board must make adequately supported findings either that the suspected conflict of interest does not exist or that important public advantages justify disregarding it. The difficulty in making the former finding here would seem rather formidable in view of the Examiner’s conclusion, accepted by all concerned, that “the rate of growth of air-cargo transportation will depend substantially upon the extent to which it is scientifically promoted * * * ” and that the “largest potential source of air cargo” will only be developed as a result of “in-depth analysis of a shipper’s operating problems” — this to include “determining the comparative cost of warehousing, damage claims, communications, storage, use of money, size of inventories, packing costs, and many other factors.” It is thus of little consequence that a motor carrier will readily forward shipments by air when the shipper requests this. The problem arises when the shipper is not already convinced of the merits of air freight, and we find a certain unreality in the spectacle of a long-haul motor carrier urging a shipper that higher air rates are counterbalanced by lower expense for warehousing, damage and pilferage, smaller packing costs, and inventory savings, when he knows that such arguments may spread from shipments he is willing to see go by air to others he decidedly is not. Yet, as the Examiner recognized, the forwarder is a kind of transportation adviser, see Comment, Intermodal Transportation and the Freight Forwarder, 76 Yale L.J. 1360, 1361-62 (1967), and his services are generally used by the smaller unsophisticated shipper. See Snow, Air Freight Forwarding: A Legal and Economic Analysis, 32 J. of Air Law & Com. 485, 489-92 and table 4 (1966). To argue, as the Examiner did, that because the motor carriers cannot prevent certain shipments from moving by air, they will try to promote their competitors’ service in marginal cases seems at war with common sense. His alternative argument, that the motor carriers would be forced to promote air shipment by the efforts of the independent forwarders, presupposes continuing vigor of the independent forwarders and, apart from other objections, the lack of evidentiary support for this premise in the context of a large-scale invasion by motor carriers causes the conclusion to fall with it.
The Board sought to strengthen the case by proffering two additional considerations. In something of a tour de force, it argued that granting air freight forwarding authority to competing motor carriers not merely would present no real problem of conflicting interest but “will in fact reduce whatever conflict of interest may exist.” This was because “if there be a conflict of interest, it inheres in the circumstances where the trucker may have a choice with respect to any shipment between transporting it all the way himself or turning it over to air carriers for part of the journey.” If truckers have an economic incentive to ship by air in these situations, the Board concluded, their “conflicting” interest in the surface long haul will thereby be diminished. This betrays a serious confusion of thought. The interest of a trucker, so long as he sticks to trucking, is to truck to the utmost, save for shipments he will carry at a loss; he can have no conflict of interest even though he may cast a longing eye on other pastures. Conflict of interest arises only when an operator is permitted to engage in competing modes of transportation, with the inevitable consequence that his superior economic stake in one may conflict with his using the other in the best interests of the customer. If a trucker advises a shipper that air freight is uneconomic, even a naive businessman would recognize this to be special pleading. It is only when the trucker becomes an air freight forwarder, ostensibly also interested in air transport, that he is cast in a role creating danger of his being able to effect unfair preservation of a status in which surface carriage is the norm. While the Board might conclude, after studying the proposals of a particular surface carrier, that despite its conflict of interest the applicant will conscientiously promote air transport, it cannot simply wish the conflict out of existence for a whole industry as it has done here.
Perhaps it was some awareness of this fallacy in its general position as to conflict of interest that led the Board to mark out a category of traffic, to wit, packages of less than 200 pounds, where no conflict was thought to exist since the truckers now carry these at a loss or minimal gain and they could earn more as forwarders by shipping such packages by air. However, the point outruns the evidentiary basis for it. The sole exhibit on which this conclusion rested had been presented by the Board’s Bureau of Operating Rights with the caveat that its purpose was “not to attempt to fix the cost of handling shipments in relation to the revenue yields associated with specific commodities,” but simply to suggest “that different weights and different commodities may have a significantly different impact upon motor carrier costs and revenues.” To that end the Bureau took shipments of metal products, machinery and chemicals, with weight breaks at 100, 200 and 500 pounds, and compared transcontinental motor carrier average costs with Consolidated Freight-ways’ revenue yield for sample shipments over similar mileages. The figures indicated a loss for metal products and chemicals in all three weight-breaks and for machinery below 200 pounds. Some things the figures do not tell are how far transcontinental average costs are appropriate for Consolidated Freightways, whether incremental costs would not be more significant for the use to which the Board put the exhibit, how far the figures for these three categories of traffic are representative, to what degree truckers would prefer to carry the smaller packages at a loss in order to prevent the shipper’s becoming accustomed to air freight, and how far the value of these shipments as compared with their weight and bulk would make them candidates for air freight forwarding so that the truckers might earn more by sending them that way. Not only is the exhibit inadequate on its face for the purpose for which it was used, but other exhibits submitted by the Bureau squarely contradict the notion that motor carriers would gladly divert a large number of small shipments to the airlines. An I. C. C. study of a representative group of long haul motor carriers, including all four applicants, found that 45% of the shipments transported by the truckers weighed less than 150 pounds. From this exhibit and others, the Bureau concluded that “motor carriers move the same com-modifies in small weight break categories as the air carriers. These commodities provide a primary source of weight and revenue for the direct air carriers, the air freight forwarders and the motor carriers.” It is exceedingly dangerous business — indeed under some circumstances a denial of the fair hearing required by the APA — for an agency to seize upon a single exhibit in a large record, introduced for a limited and hardly controversial purpose, and make this an important basis for decision without benefit of cross-examination, rebuttal or argument. Compare Ohio Bell Telephone Co. v. Public Utilities Comm’n of Ohio, 301 U.S. 292, 304-306, 57 S.Ct. 724, 81 L.Ed. 1093 (1937).
III.
The Board’s failure to come to terms with the conflict of interest problem also undermines its findings that important public advantages will result from motor carrier entry into air freight forwarding. The agency emphasized that the truckers can be expected to develop air cargo in markets in which this service is presently being underutilized; this was of particular importance with respect to the further conclusion that the authorization would greatly increase intermodal carriage since that consideration faced an initial obstacle in the Examiner’s uncontradicted finding that “most of the air cargo travels between major airline points * * But it is precisely in these anticipated new markets, where there is at present little independent forwarder competition, in which the conflict of interest argument tells most strongly. Large numbers of independent forwarders have been entering the industry in recent years — the number of forwarders increased by 54%- between 1961 and 1965 and on December 31, 1965, sixty more forwarders had 98 applications for domestic and international authority pending. If a large number of truckers entered the underdeveloped markets at the present time and proceeded to follow their economic interests by skimming the cream, prospective independents might hesitate long before deciding to enter, cf. F. T. C. v. Procter & Gamble Co., 386 U. S. 568, 579, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967); Bain, Industrial Organization 239-40 (1959). Here again, the Board did not consider this problem in industry-wide terms, but simply based its conclusion on the applications of the four truckers in the present proceeding.
The Board also concluded that the grant of forwarding authority will induce the motor carriers to develop air cargo traffic beyond the traditional radius of 25 miles or within the city limits, 14 C.F.R. § 222.21 (1967), 49 C.F.R. § 210.40 (1967), to which the other air freight forwarders have been restricted. In its opinion, however, the Board promised to consider expanding these limits in accordance with recent judicial decisions, Law Motor Freight, Inc. v. CAB, 364 F.2d 139 (1 Cir. 1966); National Motor Freight Traffic Ass’n, Inc. v. CAB, 374 F.2d 266 (D.C.Cir. 1966), cert. denied in both cases, 387 U.S. 905, 87 S.Ct. 1687, 18 L.Ed.2d 623 (1967), and petitioners argue that the agency’s previous failure to take this step cannot provide it with a reason for permitting the truckers to enter the industry. To some extent this argument neglects that the Interstate Commerce Commission must also approve of such an expansion of service, see 49 U.S.C. § 303(b) (7a) (1964), Air Dispatch, Inc. v. United States, 237 F.Supp. 450 (E.D.Pa.1964), aff’d per curiam 381 U.S. 412, 85 S.Ct. 1576, 14 L.Ed.2d 693 (1965). While that agency’s approach has been criticized as unduly restrictive, Note, Regulation of Air Freight Pickup and Delivery, 76 Yale L.J. 405 (1966), it nevertheless has declared that it would not be bound by the CAB’s decision, although giving weight to this. Motor Transportation of Property Incidental to Air, 95 M.C.C. 71, 87 (1964), aff’d sub nom. Air Dispatch Inc. v. United States, supra; cf. Zantop Air Transport, Inc. v. United States, 272 F.Supp. 265 (E.D.Mich.1967). But while the Board was justified in considering the truckers’ ability to solicit air freight along their regular routes outside the area where air forwarders can truck, once more it has failed sufficiently to explain why, as a general matter, they would be motivated to do so.
A final point of concern, although we should not have reversed on this ground, is the failure of the Examiner and the Board to relate their decision in depth to one matter on which every one was agreed. This was that with the introduction of additional jet-propelled cargo-only aircraft and more mechanization, air freight costs and rates will decrease while service will improve, so that air competition with surface transportation will become even more intense. At first blush this would seem a strange context for the grant of authorizations which, if followed as a general policy, would give motor carriers an important, if not indeed a dominant, role in air freight forwarding. Granted that the increased capacity will demand ever greater sales efforts, one would wish to know why this could not be better afforded by independent air freight forwarders, now existing or entering the market as a result of the heightened prospects. We fully recognize that, as Judge Prettyman classically stated in American Airlines, Inc. v. CAB, 192 F.2d 417
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_usc2
|
29
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 29. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
McCOMB, Administrator of Wage and Hour Division, U. S. Department of Labor, v. WYANDOTTE FURNITURE CO.
No. 13674.
Circuit Court of Appeals Eighth Circuit.
Aug. 28, 1948.
John A. Weiss, Atty., Department of Labor, of Kansas City, Mo., and Frederick U. Reel, Atty., Department of Labor, of Washington, D. C. (William S. Tyson, Sol., Bessie Margolin, Asst. Sol., and Helen Grundstein, Atty., Department of Labor, all of Washington D. C., and Reid Williams, Regional Atty., Department of Labor, of Kansas City, Mo., on the brief), for appellant.
W. Raleigh Gough, of Kansas City, Mo. (W. F. Wilkinson, of Kansas City, Mo., on the brief), for appellee.
Before SANBORN, JOHNSEN, and COLLET, Circuit Judges.
JOHNSEN, Circuit Judge.
Wyandotte Furniture Company operates five retail furniture stores. Two are located in Kansas City, Missouri, one in Independence, Missouri, one in Jefferson City, Missouri, and the other in Kansas City, Kansas.
The Company also maintains two warehouses for the purpose of keeping its stores supplied with merchandise. Both are located in Kansas City, Missouri. All the stores get goods regularly from the warehouses, as often at least as once a week. The warehouses have a single set of employees, consisting of five workmen and a foreman. Over 70 per cent of the goods received and handled at the warehouses comes directly from without the State of Missouri, and more than one-fourth thereof is distributed from the warehouses to the store located in Kansas City, Kansas. The Company maintains a central office in a rear room of one of the Kansas City, Missouri, stores, and a bookkeeper there keeps the records on all purchases made of goods, their receipt by the warehouses, and their transfer from the warehouses to the various stores.
The Administrator of the Wage and Hour Division brought suit to enjoin the Company from violating the overtime and record-keeping requirements of the Fair Labor Standards Act, 29 U.S.C.A. § 215(a) (2) and (a) (5), as to the five warehouse workmen and the bookkeeper referred to above. The trial court denied an injunction and dismissed the complaint, Walling v. Wyandotte Furniture Co., D.C.W.D.Mo., 72 F.Supp. 98, and the Administrator has appealed.
The duties of the warehouse workmen, as set out in the court’s findings, consisted in moving the goods into the warehouses from the platform, to which they were hauled from the freight cars by commercial trucking firms; in uncrating the goods; in assembling such goods as came “knocked down”; in repairing any minor damages to the goods that had occurred in transit; in placing the goods in their respectively allotted spaces in the warehouses; and in collecting and taking such part of the goods to the warehouse platform as from time to time was to be transferred to each of the various stores.
The trial court held that all of the goods “came to rest at the warehouse” and were thereby “taken out of commerce”; that in none of their tasks were the employees involved “engaged in commerce or in the production of goods for commerce,” except in “preparing for delivery the part of such goods transferred to Kansas and the keeping of records pertaining thereto”; that the latter tasks could not be said to constitute a substantial part of the work of these employees and therefore might be ignored; that furthermore all of the five stores constituted but a single enterprise, with the warehouses as incidents or adjuncts of the enterprise, and the whole thereof represented together a retail establishment, which was within the exemption of section 13(a) (2), 29 U.S.C.A. § 213(a) (2); that, even if the five stores should be regarded as separate establishments, the two warehouses [one of which was situated in the same block as the Company’s principal Kansas City, Missouri, store, with the back ends of the buildings opposite each other on a public alley, with their rear doors directly across from each other, and with the second floors of the two buildings connected by a passageway over the alley; and the other of which was situated across the street from the first warehouse, in the next block, but was not in any way physically connected with either of the other two buildings] would still constitute a retail establishment in relation to and as a part of the Company’s principal Kansas City, Missouri, store; and finally that “This suit is a moot case * * * for the reason that, at the time of filing this suit, defendant was not violating any of the provisions of the Act * *
We think the court erred in these conclusions and in its dismissal of the suit on the basis thereof.
Goods purchased by a chain store system outside the state, as intended stock for its various stores, are not taken out of the stream of commerce by being sent temporarily -to a warehouse, as a means of facilitating their systematic distribution to the several stores in accordance with regular needs. See Walling v. Mutual Wholesale Food & Supply Co., 8 Cir., 141 F.2d 331, 339, 340; Beggs v. Kroger Co., 8 Cir., 167 F.2d 700, 703; Mid-Continent Petroleum Corporation v. Keen, 8 Cir., 157 F.2d 310; Walling v. American Stores Co., 3 Cir., 133 F.2d 840, 845, 846; Walling v. Goldblatt Bros., 7 Cir., 152 F.2d 475; Montgomery Ward & Co. v. Antis, 6 Cir., 158 F.2d 948, 951.
All the merchandise of the warehouses, when it began its interstate journey, was destined, and only destined, as goods for th.e retail stores of the chain, and the warehouses were simply an instrumentality adopted by the Company, as a regular process, for economically and conveniently achieving that result. Cf. Beggs v. Kroger Co., supra, 8 Cir., 167 F.2d 700, 703. As the Supreme Court said in Walling v. Jacksonville Paper Co., 317 U.S. 564, 568, 63 S.Ct. 332, 335, 87 L.Ed. 460, “if the halt in the movement of the goods is a convenient intermediate step in the process of getting them to their final destination, they remain ‘in commerce’ until they reach those points.”
In this connection, it must be borne in mind that the purchase of a supply of goods by a chain store system for its established retail stores and the handling of the distribution of such goods regularly to the stores through a warehouse system do not have an identicalness with all the aspects of an independent wholesaling business. Thus, as pointed out in the Jacksonville Paper Co. case, an independent wholesaler may order goods for general wholesaling purposes, which have such an uncertainty of any immediate destination, and some of which may never in fact get out of the wholesale house at all, that they are lacking in “that practical continuity in transit necessary to keep a movement of goods ‘in commerce’ within the meaning of the Act,” and so must be regarded as having “come to rest” in the wholesale house. 317 U.S. at page 570, 63 S.Ct. at page 336.
On the basis of what we have said, it could not properly be held that the warehouse workmen in the present situation were not engaged in commerce. But apart from this general aspect, the warehouse workmen and the bookkeeper were in any event, as the trial court recognized, “engaged in commerce or in the production of goods for commerce” in their duties of “preparing for delivery the part of such goods transferred to Kansas and the keeping of records pertaining thereto.” And in its proper perspective, even this work could not, as the trial court seemed to think, be regarded as so unsubstantial in amount as to be entitled to be ignored.
Over one-fourth of all the goods received at the warehouses was, as we have indicated, distributed to the Kansas store. The work of the warehouse employees in relation to these goods could not be measured in terms of simply wheeling them to the platform to be hauled away, as the court appears to have done. As the goods went to the Kansas store, all the work done by the warehouse workmen on them (moving them in, uncrating them, setting them up, repairing them, putting them in their proper space, taking them out to the platform, and any other handling) necessarily had an economic significance in relation to their being made a part of the stock of the Kansas store and plainly constituted the production of goods for commerce within the definition of section 3(j) of the Act, 29 U.S.C.A. § 203(j). Cf. Hertz Drivurself Stations v. United States, 8 Cir., 150 F.2d 923, 926; Walling v. Friend, 8 Cir., 156 F.2d 429, 430, 431; Meeker Cooperative Light & Power Ass’n v. Phillips, 8 Cir., 158 F.2d 698, 699.
Thus viewed, the activities of the warehouse workmen in handling more than one-fourth of the goods of the warehouses for the Kansas store could not be said to be unsubstantial. Nor could the work of the bookkeeper covered by the Act be regarded as unsubstantial, when the record-keeping task was considered in relation to the purchase, receipt and transfer of all the interstate goods, and such goods were viewed as being still in commerce until they came to rest in the several stores.
The trial court also clearly erred in its view that the five stores and the warehouses could be regarded as constituting together one retail establishment for purposes of the exemption of section 13 (a) (2) of the Act, 29 U.S.C.A. § 213(a) (2). The term “retail establishment,” as used in that section, means “a distinct physical place of business,” and each store of a chain store system therefore must be viewed as a separate establishment. A. H. Phillips, Inc., v. Walling, 324 U.S. 490, 496, 65 S.Ct. 807, 810, 89 L.Ed 1095, 157 A.L.R. 876. Nor could the warehouses here, in their function of receiving goods for and distributing them to the Company’s various stores, be held to be within the exemption of the specific retail store near which they were located and which was in fact directly connected to one of the warehouses by a passageway over an alley. Id., and see also Fred Wolferman, Inc., v. Gustafson, 8 Cir., 169 F.2d 759, this date decided; Walling v. Goldblatt Bros., 7 Cir., 152 F.2d 475. Nor would the fact that part of the space in the warehouse was used as a display section by this store for some of its goods bring the warehouse workmen within the exemption of the store, in their tasks of performing the function of the warehouses in receiving and distributing goods generally to the various stores. And the fact that customers of the retail store were sometimes taken over to the warehouse by clerks of the store and permitted to make a selection from the warehouse floor similarly would not bring the general receiving and distributing functions of the warehouses for the chain store system within the exemption of the single store.
¡The trial court was in error too in holding that the fact that the Company was not violating the Act at the time the suit was filed would render the question of the Administrator’s right to an injunction moot. The mere cessation of a violation does not render such a case moot. Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43, 65 S.Ct. 11, 89 L.Ed. 29; Walling v. Mutual Wholesale Food & Supply Co., 8 Cir., 141 F.2d 331, 334, 335.
In the present situation, the Company had at all times asserted and still asserts that it is not subject to the provisions of the Act. It admits that, in presently making payment of overtime compensation to its warehouse workmen on the basis provided in the Act, it is doing so solely because of a union contract made with its employees through collective bargaining. It undertakes to give no assurance of what it will do on the expiration of the contract. And as a matter of fact, while the court held that the Company was no longer violating the Act, the record shows only that it is making payment of proper overtime compensation to its warehouse workmen. There is no showing that violations have ceased with respect to the bookkeeper in the central office.
Where the legality of an employer’s previous acts remains in controversy under the Fair Labor Standards Act, the Administrator ordinarily should be granted an injunction, even though the employer has ceased the violation, unless the trial court soundly is convinced from the situation that there is no reasonable probability of a recurrence of the acts. And where a violation still persists at the time of the trial and is not inadvertent, an injunction clearly should be granted.
The judgment is reversed and the cause is remanded for further proceedings.
The Administrator contended in the trial court that the warehouse foreman and the treasurer of the Company also were within the Act, but on the appeal he has limited his contention to the five warehouse workmen and the bookkeeper.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 29. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_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. Milton W. LEWIS and Lee Roy Sohn, Defendants-Appellants.
No. 16227.
United States Court of Appeals Seventh Circuit.
Jan. 29, 1969.
Rehearing Denied Feb. 14, 1969.
Charles A. Bellows, Jason E. Bellows, Sherman C. Magidson, Harry J. Busch, Chicago, Ill., for defendants-appellants; Bellows, Bellows & Magidson, Chicago, Ill., of counsel.
Thomas A. Foran, U. S. Atty., Richard A. Makarski, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Michael B. Nash, Asst. U. S. Attys., of counsel.
Before KILEY, CUMMINGS and KERNER, Circuit Judges.
CUMMINGS, Circuit Judge.
In August 1966, a six-count indictment was returned against Lee Roy Sohn, Milton W. Lewis, and Jerry Pace. The first count charged defendants with a conspiracy to defraud the United States concerning its right to have the transaction of the business of the Veterans’ Administration “conducted free from deceit, fraud, craft, trickery, dishonesty, unlawful impairment and obstruction,” in violation of Section 371 of the Criminal Code (18 U.S.C. § 371). The indictment also contained five substantive counts alleging that various defendants had violated Section 289 of the Criminal Code (18 U.S.C. § 289).
After a jury trial, each defendant was found guilty with respect to all counts in which he was charged. General sentences of one year each were imposed on defendants Sohn and Lewis, together with fines. Defendant Pace was fined and sentenced to a probationary term of two years, with the first 30 days to be spent “in a jail-type institution.” Pace has not appealed.
Sufficiency of the Indictment
Defendants do not attack the conspiracy count of the indictment, which charges them under 18 U.S.C. § 371, punishing conspiracy “to commit any offense against the United States, or to defraud the United States, or any agency thereof * *
The substantive counts charge violations of 18 U.S.C. § 289, which provides in pertinent part:
“Whoever knowingly and willfully makes, or presents any false, fictitious or fraudulent affidavit, declaration, certificate, voucher, endorsement, or paper or writing purporting to be such, concerning any claim for pension or payment thereof, or pertaining to any other matter within the jurisdiction of the Administrator of Veterans’ Affairs * *
Citing Sanchez v. United States, 134 F.2d 279, 282-283 (1st Cir. 1943), certiorari denied sub nom. Tapia v. United States, 319 U.S. 768, 63 S.Ct. 1325, 87 L.Ed. 1717, and other cases, defendants contend that this statute relates only to the subject of pension claims. The Sanchez ease followed the Supreme Court’s construction of an earlier version of this statute in United States v. Keitel, 211 U.S. 370, 395-397, 29 S.Ct. 123, 53 L.Ed. 230. In the light of the breadth of the language of the statute, the Keitel and Sanchez cases seem restrictive in limiting it to pension claims. But we do not need to construe Section 289 here, for defendants concede that the substantive counts of this indictment properly state an offense under Section 1001 of the Criminal Code (18 U.S.C. § 1001), which provides in pertinent part:
“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined * * * or imprisoned * * * or both.”
Sufficiency of the Evidence
Count I of the indictment is the conspiracy count and charged that defendants Lewis, Sohn and Jerry Pace conspired with three non-defendant co-conspirators to defraud the United States concerning its right to have the Veterans’ Administration official business conducted free from deceit and the like. In 1961 Lewis and Sohn organized Mil-roy Realty Company, and, after becoming licensed Veterans’ Administration brokers, they operated the company as a Veterans’ Administration-approved realty company selling repossessed houses owned by the Veterans’ Administration. Pace was a salesman for Milroy. To secure approval of sales of these homes to their customers, the defendants purportedly submitted false credit information to the Veterans’ Administration concerning prospective purchasers upon VA Form No. 26-6705 for “Credit Statement and Offer of Prospective Purchaser.” As part of the conspiracy, they allegedly obtained false credit reports from Hill’s Reports, Inc. to substantiate the credit information contained on the VA forms. Eleven overt acts, including transactions with prospective customers similar to those alleged in the substantive counts, were alleged in furtherance of the conspiracy.
We conclude that there was ample testimony to prove the conspiracy charged in Count I. Much of the supporting evidence is summarized below under Counts II through IV. The falsified Veterans’ Administration forms were always signed by Sohn or Lewis. Sohn himself placed false information on these statements. In the instance covered by overt act 5, prospective purchaser William Rodriguez gave correct credit information to both defendants and Lewis signed the falsified application that was filed with the Veterans’ Administration. Similarly, the credit statement filed on behalf of Meddie Dampier, Jr., falsely represented that the applicant had no debts and overstated the value of some assets and listed nonexistent assets, all in contradiction to the information which the applicant had supplied to Sohn. Both defendants arranged with Hill’s Reports for the speedy delivery of unchecked credit information. Through the falsified transactions, their creature, Milroy Realty Company, was enabled to receive commissions from the Veterans’ Administration. We are satisfied that there was more than sufficient evidence to support the jury’s verdict that these two defendants engaged in the conspiracy charged, even though some of the eleven overt acts might not have involved them sufficiently to constitute separate substantive offenses.
Count II charged that in September 1962, defendants Lewis and Sohn presented to the Veterans’ Administration a Credit Statement and Offer of Prospective Purchaser form signed by Theodore R. Gardner falsely representing that Gardner had no financial obligations. Like the remaining four Counts of the indictment, this was said to violate Section 289 of the Criminal Code, but defendants concede that these five Counts adequately charge a violation of Section 1001 of the Criminal Code. In support of Count II, the Government introduced in evidence Milroy Realty Company’s invoice, signed by Sohn, to the Veterans’ Administration for $825 commission on the sale of a repossessed house to Gardner, as well as a Hill’s Report showing Gardner’s net worth to be $6100. The Government also introduced the Credit Statement and Offer of Prospective Purchaser form signed by Gardner on September 6, 1962, and also signed by Sohn for the Milroy Realty Company on the same date. This credit statement contained the typed answer “None” as to Gardner’s creditors.
Sohn testified that Lewis handled this transaction with Gardner. He said that Gardner came to the Milroy office because Lewis had sold Gardner’s brother a home. Gardner testified that he told Sohn that he owed $200 to the Gold-blatt’s Department Store and $700 in car payments and $800 to the Goldenberg Furniture Company. He said that the VA form was being typed out as he spoke to Sohn on September 6 at the Milroy Realty Company’s office. Gardner testified that Lewis was present in the office and was typing the form or asking him questions.
Viewing the evidence in the light most favorable to the Government (Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680), the Sohn and Gardner testimony, together with the documentary evidence, sufficiently involves both Lewis and Sohn in this transaction, so that the district court correctly denied their motion for judgment of acquittal.
Count III charged that defendant Sohn presented another fraudulent Credit Statement and Offer of Prospective Purchaser to the Veterans’ Administration on January 18, 1963. The form stated that another prospective purchaser, William M. Swain, “had no obligations, had $500.00 in U. S. Savings Bonds, Stocks, and other securities, had $350.00 in cash on hand and on deposit, that he owned a 1952 Super Buick hardtop worth $300.00.” Swain testified that he discussed the Veterans’ Administration form with Sohn and told Sohn that he had no securities. Sohn told Swain that he would list $500 in securities in order to secure Veterans’ Administration approval of the house purchase. Swain said that he told Sohn he only had $200 in cash on hand, but Sohn listed the amount as $350 on the form. Swain advised Sohn that he owned a 1957 Cadillac as well as the 1952 Buick, but Sohn said that he would not list the Cadillac because Veterans’ Administration approval could not be obtained if both cars were listed. Swain also told Sohn that he had $200 worth of mechanic’s tools, but Sohn listed them as $1500. He also listed Swain’s furniture and appliances at $5,000 even though Swain testified that he did not have such assets. Swain also told Sohn of various debts, but Sohn listed them as “None.” Interestingly enough, the Hill’s credit report on Swain, submitted to the Veterans’ Administration by Sohn, shows Swain’s net worth as $7,650, the same amount as the various assets listed on the Veterans’ Administration form prepared by Sohn and executed by him and Swain.
The jury was of course entitled to credit Swain’s testimony, which amply supports the charge of Count III. However, Sohn contends that since Swain actually owned a 1952 Buick worth $300, the proof did not conform to the indictment, so that there was a fatal variance within the rule of Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252. But Count III charged the making of a fraudulent credit statement, and it was legitimate to prove that the statement that Swain had one car was false because he had two. See Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. Count III gave adequate notice of facts to be proved. Any variance was minor, with no possibility of surprise and no danger of double prosecution.
Count IV charged that Sohn and Jerry Pace presented another false credit statement to the Veterans’ Administration on January 23, 1963, involving prospective purchaser Robert G. Boege. The credit statement, which was received in evidence, showed that Boege had $150 cash on hand, whereas he testified that he had no cash on hand. It showed he had securities worth $125, while he testified that he had no securities. It listed his furniture as $5,500, but Boege testified that his furniture was not worth that amount. It showed him as the owner of a 1957 Chevrolet worth $1,000, whereas his testimony was that he owned only a 1955 Hudson. It listed him as having a life insurance policy of $10,000, but Boege stated that it was only a $5,000 policy. Finally, the statement listed his creditors as “None,” although Boege testified that he had advised Sohn that he owed a loan company $700, that he owed Sears, Roebuck $500 or $600, and that he owed his credit union $200. Boege testified that he signed the Credit Statement and Offer of Prospective Purchaser in blank. The statement itself shows January 23, 1963, as the date that Boege signed, and February 3 as the date of Sohn’s signature. As with the previous Counts, there was ample testimony for the jury to base its finding that Sohn was guilty as charged in Count IV.
Although the indictment inadvertently charged the credit statement falsely represented that Boege had $1,000 in life insurance, it was legitimate to show Sohn had overstated the insurance in the amount of $5,000 above the actual $5,000 insurance owned by Boege. Cf. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314.
Counts V and VI charged that in March 1963, Lewis and Jerry Pace submitted fraudulent Veterans’ Administration forms to that agency with respect to purchasers Edward M. Armstead and Loran A. McClintoek. Our study of the evidence shows that the credit statements were fraudulent. On the other hand, Lewis’ only involvement with either transaction was his purported' signature on the two credit statements. Absent any testimony tending to associate Lewis with the gathering of information for these statements, that is insufficient evidence of consciousness of guilt, so that the charges against Lewis under both these Counts must be dismissed. United States v. Fabric Garment Co., 262 F.2d 631, 640 (2d Cir. 1958), certiorari denied, 359 U.S. 989, 79 S.Ct. 1117, 3 L.Ed.2d 978.
Non-disclosure of Pace’s Grand Jury Testimony
Before and at the commencement of the trial, defendant Pace moved for production of the minutes of his July 1965 grand jury testimony in order to refresh his recollection regarding the indictment transactions. Production was refused. The Government concedes that defendants Lewis and Sohn are entitled to question this ruling.
Pace declined to testify. Lewis and Sohn assert that if Pace had been permitted to view his grand jury testimony, he would have testified to their benefit. This is purely speculative, so that no abuse of discretion by the trial judge has been shown under Rule 16(a) (3) of the Federal Rules of Criminal Procedure. Moreover, defendants are in effect asking us to apply the liberalized rule of United States v. Amabile, 395 F.2d 47, 53 (7th Cir. 1968), but that holding is applicable only to trials commencing after April 26, 1968.
Admission of Prior Consistent Statements
The trial court received in evidence certain 1965 FBI statements of witness Gardner after defendants attempted to impeach him through his 1964 FBI statements. The question of admitting prior consistent statements is normally one for the discretion of the trial judge. Beaty v. United States, 203 F.2d 652, 656 (4th Cir. 1953), vacated and remanded on other grounds, 348 U.S. 905. Where, as in this case, there is doubt as to whether the impeaching statements were made or as to their scope, prior consistent statements may be admitted. United States v. Corry, 183 F.2d 155, 157 (2d Cir. 1950). It is not necessary that the consistent statement predate the inconsistent statement so long as is predates any motive to falsify testimony. United States v. Keller, 145 F.Supp. 692, 696-697 (D.N.J. 1956). Here, however, the 1965 statements were made when Gardner had a motive to fabricate in order to exculpate himself and therefore should not have been received. United States v. Sherman, 171 F.2d 619, 622 (2d Cir. 1948), certiorari denied sub nom. Whelan v. United States, 337 U.S. 931, 69 S.Ct. 1484, 93 L.Ed. 1738; III Wharton’s Criminal Evidence (12th ed. 1955) 435-439; IV Wigmore on Evidence (3d ed. 1940) § 1126. If there were other cumulative errors, the harmless error rule of Rule 52(a) of the Federal Rules of Criminal Procedure might not apply. United States v. Donnelly, 179 F.2d 227, 232, 233 (7th Cir. 1950). But here, as in United States v. Potash, 118 F.2d 54, 57 (2d Cir. 1941), certiorari denied, 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540, the 1965 corroboration was of no great significance in the Count II case against Lewis and Sohn. We cannot say that under these circumstances the trial judge so abused his discretion in receiving this testimony as to compel reversal. Af-fronti v. United States, 145 F.2d 3, 7 (8th Cir. 1944). Moreover, the convictions must stand since there was evidence to support the jury’s findings that they were guilty on other counts, thus justifying the one-year general sentence imposed. United States v. Cephas, 263 F.2d 518, 519 (7th Cir. 1959).
Limits on Defendant Sohn’s Direct Testimony
Defendant Sohn asserts that the trial court unduly limited his direct testimony. He was not permitted to say whether Robert Boege’s Veterans’ Administration credit statement of January 23, 1963, allegedly filled in by Sohn and Pace, “truly and accurately represent [s] everything that was said” by Boege to Sohn on that date. We agree with the Government that Sohn was not competent to compare this credit statement with what Boege had told him, for Sohn testified that he did not recall Boege’s “representations made as to his financial condition.”
During the Government’s ease, William Swain testified that he told Sohn he had about $200 cash on hand and on deposit. The court ruled that Sohn’s counsel could therefore ask Sohn whether that statment was made, thus allowing defense counsel to refute the testimony of a Government witness. The court permitted Sohn to say that Swain actually claimed to be possessed of $350 cash on hand and on deposit. Since defense counsel was permitted to make this point, there was of course no undue limitation of Sohn’s direct examination. The court properly refused to let Sohn use Swain’s January 18, 1963, Veterans’ Administration credit statement because Sohn testified he remembered the transaction, so that it would be improper to read from the credit statement. National Labor Relations Board v. Hudson Pulp & Paper Corp., 273 F.2d 660, 665 (5th Cir. 1960); see Annotation, 82 A.L.R.2d 473, 493.
The court’s rulings in limiting the leading questions asked of Sohn by his counsel were well within its discretion and accordingly will not be disturbed. United States v. Montgomery, 126 F.2d 151, 153 (3d Cir. 1942), certiorari denied, 316 U.S. 681, 62 S.Ct. 1268, 86 L.Ed. 1754; City-Wide Trucking Corp. v. Ford, 113 U.S.App.D.C. 198, 306 F.2d 805, 807 (1962).
Testimony as to Defaults by Purchasers
Walter Budzyn, an official of the Veterans’ Administration, was allowed to testify that some of the prospective purchasers approved by Milroy had defaulted, but the court ruled that their number was immaterial. The permitted colloquy was as follows:
“Q. Of the prospective purchasers approved, have any of them defaulted?
******
The Witness: Yes.”
Surely this brief reference to losses, which defendants’ reply brief concedes may sometimes be the result of fraud, would not prejudice the jury against defendants.
Similarity Between Credit Statements and Hill’s Reports
Mr. Budzyn was permitted to testify that “We noticed that there was a similarity between the credit statements] [filled out and submitted by Milroy] and the Hill’s Reports.” This was a permissible description of voluminous documents rather than an impermissible invasion of the jury’s function. Allen v. Matson Navigation Co., 255 F.2d 273, 278 (9th Cir. 1958). It was still left to the jury to determine whether defendants had obtained false credit reports from Hill’s as charged in Count I. Budzyn expressed no opinion on that subject.
Denial of Speedy Trial
Finally, defendants assert they were denied a speedy trial in derogation of the Sixth Amendment and Rule 48(b) of the Federal Rules of Criminal Procedure. The investigation of defendants’ 1962-1963 activities commenced in October 1963, but the grand jury phase did not occur until July 1965, and the present indictment was not returned until August 30, 1966. These delays were well within the applicable five-year statute of limitations (18 U.S.C. § 3282) and hence were not untoward absent a showing of prejudice. United States v. Deloney, 389 F.2d 324, 325 (7th Cir. 1968), certiorari denied, 391 U.S. 904, 88 S.Ct. 1652, 20 L.Ed.2d 417. As in United States v. Jones, 403 F.2d 498 (7th Cir. 1968), defendants have not satisfied us that they were prejudiced by the pre-in-dictment delays.
The period between indictment and trial was only five months, quite a short period in a busy metropolitan court. Some of this time was consumed by defendants’ pre-trial motions. In any event, such a comparatively brief delay violates neither the Sixth Amendment nor Rule 48(b).
Defendant Lewis’ conviction cannot stand under Counts V and VI. However, his conviction under Counts I and II and defendant Sohn’s conviction under Counts I, III, and IV were proper and justify the general sentence imposed. The judgment is affirmed.
. This indictment replaced a 1965 indictment that failed to specify in Count I the Section of the Criminal Code allegedly violated.
. Milroy Realty Company, Dominic C. Pace, and Hill’s Reports, Inc.
. The proof as to the transactions underlying overt acts 6, 7, 9, 10 and 11 involved only Lewis or Sohn signatures on fraudulent credit statements. See the discussions of the sufficiency of the evidence under Counts V and VI, infra.
. See discussion supra, pp. 406-489.
. We need not decide whether Amabile would apply to these facts if this trial had occurred after April 26,1968.
. See note 1, supra.
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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